Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 7, #6

The State Legislature enacted reforms to the "Rockefeller drug laws" to allow resentencing to reduce lengthy prison sentences previously imposed. However, resentencing under the two Drug Law Reform Acts is not automatic.

The first DLRA (L 2004, ch 738, § 36), applies to a defendant who received a sentence of 15 years to life or more. See Penal Law § 70.71. There is a presumption in favor of resentencing absent a showing that substantial justice requires denial thereof. People v Beasley, 47 AD3d 639, 850 NYS2d 140 (2d Dept 2008).

There are a number of criteria for eligibility for DLRA resentencing: it is limited to Penal Law article 220 offenses, and is inapplicable to a class A felony conspiracy conviction. People v Anonymous, 43 AD3d 806, 842 NYS2d 433 (1st Dept 2007). A defendant with a concurrent sentence for a VFO is ineligible for resentencing, even after the VFO sentence ended. People v Quinones, 49 AD3d 323, 854 NYS2d 5 (1st Dept 2008). Also, resentencing under the DLRA is inapplicable where the inmate is within three years of parole release. People v DelaTorre, 48 AD3d 475, 852 NYS2d 198 (2d Dept 2008).

The motion for resentencing under the DLRA goes before the sentencing judge or to another judge of the same court. The judge may consider the defendant’s institutional record but shall not order a new PSI. A defendant may submit a new presentence memorandum, however, containing mitigating or favorable information.

A hearing is required. The judge may vacate the previous sentence and impose a determinate sentence under Penal Law § 70.71. Any order must include written findings of fact. Denial of resentencing or a new sentence may be appealed. See Donnino, Practice Commentaries to McKinney’s Penal Law § 60.04.

Drug Law Reform Acts



L 2004, ch 738

L 2005, ch 543, § 1

Effective December 14, 2004

Effective October 29, 2005

Applies to Class A-I felonies

Applies to class A-II felonies

DLRA-2 applies to resentencing of class A-II drug felonies where the inmate has received a minimum sentence of three years (L 2005, ch 643, § 1). An eligible inmate may apply for resentencing to a determinate term under Penal Law § 70.71. DLRA-2 is inapplicable to inmates within 12 months of parole release. It excludes defendants who had applied for and were denied parole. People v Smith, 45 AD3d 1478, 846 NYS2d 520 (4th Dept 2007). The statute requires written findings upon granting or denying resentencing. People v Williams, 45 AD3d 1377, 845 NYS2d 602 (4th Dept 2007).

The criteria includes merit time eligibility, which is unavailable to someone serving a sentence that includes a violent felony. Where a sentence includes a violent felony, the defendant is ineligible. People v Merejildo, 45 AD3d 429, 846 NYS2d 52 (1st Dept 2007).

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