Drug Parolees Eligible for Resentencing, Panel Finds

, New York Law Journal

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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.

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