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The Timing of an Exclusion Offense is Critical to Your Motion for Resentencing


Persons who were convicted of a class B felony drug offense before 2005 and were given an indeterminate sentence may apply to be resentenced to a lesser determinate sentence, provided they meet the eligibility criteria for resentencing under New York Criminal Procedure Law 440.46. One factor that can render a person ineligible is conviction of an “exclusion offense.” Under the law, an exclusion offense is basically a violent felony for which the person was previously convicted within the preceding ten years. The question has arisen whether the exclusion offense must have occurred prior to the class B drug felony the person is seeking resentencing on. Will a violent felony conviction that occurs after the drug conviction count as an exclusion offense? Different New York courts have addressed this question and seem to agree that an offense is only an exclusion offense when the conviction came before the class B felony.

People v. Devivo

In People v. Devivo, the Appellate Division of the Supreme Court of New York, Third Department ruled this way in 2011, when a person on parole for the sale of drugs was convicted of burglary. The First Department agreed in People v. Cristostomo in 2013, where a defendant on work release from a drug conviction committed and was convicted of a violent felony. Even though the state argued that the legislature could not have intended to allow such a defendant to be eligible for resentencing, the court rejected the state’s argument and held that the language of CPL 440.46 was clear that the exclusion offense must be a “predicate felony” or “previous felony” committed before the “present felony,” which is the class B drug felony subject to resentencing.

The Second Department, which includes Orange, Dutchess, Rockland and Putnam counties, among others, followed this same line of reasoning in the 2011 case of People v. Myles. This case involved an individual who committed a merit time-ineligible offense after conviction of a class B felony drug offense. In addition to violent felonies, offenses which are ineligible for a merit time allowance are also included in the definition of an exclusion offense in CPL 440.46. Here again, the merit time-ineligible offense must come before the drug conviction to be an exclusion offense.

Court still has discretion to deny resentencing

Even if a defendant is eligible for resentencing, the court can still decide whether resentencing is in the interests of justice or not, and can deny the application for resentencing if “substantial justice dictates that the application should be denied.” This in fact did happen in the Myles case, where the appeals court held that the defendant was eligible for resentencing but nevertheless affirmed the order denying his motion on substantial justice grounds (his institutional record was less than exemplary). If you are eligible for resentencing, you will need the help of an experienced criminal defense attorney to prepare your motion and argue all the reasons that the application should be granted on your behalf.

For help determining your eligibility for resentencing for a class B drug felony, and for assistance preparing, filing and arguing your motion with the court, call the dedicated and experienced Hudson Valley criminal defense lawyers at Dupée & Monroe in Goshen at 845-294-8900.

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