Unanimous Appellate Division Decision In A Legal Aid Case Allows Parolees To Petition For Drug Law Reform Resentencing
WEDNESDAY, FEBRUARY 05, 2014

A panel in the Appellate Division, Second Department ruled in a Legal Aid Society case that parolees may petition for resentencing under the Drug Law Reform Act of 2009. The unanimous decision could resolve an inconsistency in the New York City trial courts, according to David Crow, a Staff Attorney in the Society's Criminal Appeals Bureau who handled the appeal.

Crow told the New York Law Journal that Judges in Brooklyn have generally held that parolees are not eligible for resentencing, while judges in Queens and the Bronx have differed on the issue. Manhattan courts have usually sided with the parolee because the District Attorney has not objected to the resentencings. Writing for the Second Department, Justice Jeffrey Cohen said one aim of the Drug Law Reform measure was plainly to permit individuals sentenced under the harsh Rockefeller Drug Laws to seek resentencing under new, less onerous statutes. He said that allowing paroled offenders to request resentencing is consistent with the legislative objective underpinning the 2009 reform.




New York Law Journal
Drug Parolees Eligible for Resentencing, Panel Finds
By John Caher
January 30, 2014

ALBANY - Paroled drug offenders are technically in "custody" of a united parole and state corrections department, and therefore can apply for resentencing under new drug law reforms, an appellate panel in Brooklyn held Wednesday.

The unanimous decision, by the Appellate Division, Second Department, allows drug crime parolees to petition for resentencing under the Drug Law Reform Act of 2009, which could dramatically decrease the time they are supervised by a parole officer.

People v. Brown, 2012-07905, arose from Queens where the defendant, Jarrod Brown, was convicted in 2002 of criminal sale of a controlled substance and sentenced to serve 6 to 12 years in state prison.

Brown was paroled in 2011, shortly after the state Department of Correctional Services and the Division of Parole merged into a new Department of Corrections and Community Supervision (DOCCS).

The parolee applied for resentencing under the 2009 reform act, and Acting Queens Supreme Court Justice Barry Kron granted the petition over the objections of the district attorney, who argued that the paroled defendant was not in "custody" and therefore was ineligible for resentencing. The Second Department affirmed Kron.

Writing for the court, Justice Jeffrey Cohen (See Profile) said one aim of the Drug Law Reform measure was plainly to permit individuals sentenced under the harsh Rockefeller Drug Laws to seek resentencing under new, less onerous statutes. He said that allowing paroled offenders to request resentencing is consistent with the legislative objective underpinning the 2009 reform.

"The Legislature clearly intended that lengthy sentences be replaced by shorter ones as a matter of course and that only in exceptional cases, in which the People can show that substantial justice dictates that a defendant not be resentenced, should he or she be deprived of the ameliorative effect of the statute," Cohen wrote in an opinion shared by Presiding Justice Randall Eng (See Profile) and justices Reinaldo Rivera (See Profile) and Plummer Lott (See Profile).

Further, the court said the statute itself describes parolees under the new merged agency as being in the "legal custody" of DOCCS. It rejected the prosecution's argument that the 2011 merger was primary a budgetary or technical change, noting that the Legislature, in creating DOCCS, cited the "evolution of sentencing structure" toward a "focus on reentry."

The court said a more restrictive reading of the statute that would deny resentencing to parolees would "contravene legislative intent."

David Crow of the Legal Aid Society represented Brown in the appeal submitted April 26, 2013. He said the decision should resolve an inconsistency in the New York City trial courts.

Crow said judges in Brooklyn have generally held that parolees aren't eligible for resentencing, while judges in Queens and the Bronx have differed on the issue. Manhattan courts have usually sided with the parolee because the district attorney has not objected to resentencings.

The defense attorney said Brown was discharged from parole after Kron granted his petition in July 2012.

"Obviously, for Mr. Brown in particular I wanted to win the case because otherwise he would have had to go back on parole with no credit for the intervening time," Crow said.

He said he wasn't sure how many parolees are potentially affected by the decision, but "it could be a very substantial number."

Queens assistant district attorneys John Castellano, Johnette Traill and Jessica Zellner represented the prosecution.

The district attorney's office is reviewing the decision, according to a spokeswoman.