SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
152
KA 10-01905
PRESENT: SMITH, J.P., CARNI, SCONIERS, GREEN, AND GORSKI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,
V OPINION AND ORDER
WILLIE A. HILL, JR., DEFENDANT-RESPONDENT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR APPELLANT.
LINDA GEHRON, SYRACUSE, FOR DEFENDANT-RESPONDENT.
Appeal from a new sentence of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered February 11, 2010 imposed upon
defendant’s conviction of criminal possession of a controlled
substance in the third degree, criminal possession of a controlled
substance in the fourth degree and reckless driving. Defendant was
resentenced pursuant to the 2009 Drug Law Reform Act upon his 1999
conviction.
It is hereby ORDERED that the sentence so appealed from is
unanimously affirmed.
Opinion by SMITH, J.: This appeal concerns the proper method of
calculating whether a defendant is eligible for resentencing pursuant
to CPL 440.46. As relevant here, in 1994 defendant was convicted of
assault in the first degree (Penal Law § 120.10)1, a violent felony
offense (§ 70.02 [1] [a]), for acts that were committed in 1994, and
he was sentenced to an indeterminate term of incarceration. In 1999
he was convicted of, inter alia, criminal possession of a controlled
substance in the third degree (§ 220.16 [1]) and criminal possession
of a controlled substance in the fourth degree (§ 220.09 [1]) based on
events that occurred in 1998, and he was sentenced to an indeterminate
term of incarceration as a second felony offender pursuant to the
sentencing laws applicable at that time. Defendant, acting pro se,
filed a motion that was received by Supreme Court in 2009, seeking
resentencing pursuant to CPL 440.46. The People opposed the motion,
contending that defendant was ineligible for resentencing because the
total time between the commission of his prior and present felony
offenses, excluding jail time, was less than 10 years and thus he had
1
The record does not reflect the subdivision applicable to
this conviction, although all subdivisions of section 120.10 are
violent felony offenses.
-2- 152
KA 10-01905
an “exclusion offense” as that term is defined in CPL 440.46 (5) (a)
(i). The People appeal from a judgment that, inter alia, granted
defendant’s motion for resentencing.
Contrary to the contention of the People, the court properly
concluded that defendant’s prior conviction, although a violent
felony, did not constitute an “exclusion offense” within the meaning
of the statute. In pertinent part, the statute defines an “exclusion
offense” as
“a crime for which the person was previously
convicted within the preceding ten years,
excluding any time during which the offender was
incarcerated for any reason between the time of
commission of the previous felony and the time of
commission of the present felony, which was . . .
a violent felony offense as defined in section
70.02 of the penal law” (id.).
Defendant concedes that the crime for which he previously was
convicted in 1994 is a violent felony offense. Furthermore, the
parties agree that defendant committed and was previously convicted of
that offense less than 5 years prior to the commission of the instant
felony offense, i.e., criminal possession of a controlled substance in
the third degree, and more than 10 years prior to his motion for
resentencing, after deducting the time in which he was incarcerated
between his commission of the two felony offenses. Consequently, the
issue before us is whether the statute requires that the look-back
period of 10 years be measured from the date of commission of the
felony offense for which defendant seeks resentencing, as the People
contend, or from the date of the motion for resentencing, as defendant
contends. Based upon the plain language of the statute, we agree with
defendant that the look-back period is to be measured from the date of
the motion for resentencing.
It is a long-settled proposition that, in determining the
Legislature’s intent in enacting a statute, a court should interpret
the statute in a manner that is most consistent with the plain
language of the statute (see generally People v Kisina, 14 NY3d 153,
158; People v Washington, 228 AD2d 23, 26, lv denied 90 NY2d 899).
Stated differently, inasmuch
“[a]s the clearest indicator of legislative intent
is the statutory text, the starting point in any
case of interpretation must always be the language
itself, giving effect to the plain meaning thereof
. . . In construing statutes, it is a
well-established rule that resort must be had to
the natural signification of the words employed,
and if they have a definite meaning, which
involves no absurdity or contradiction, there is
no room for construction and courts have no right
to add to or take away from that meaning”
(Majewski v Broadalbin-Perth Cent. School Dist.,
-3- 152
KA 10-01905
91 NY2d 577, 583 [internal quotation marks
omitted]).
Here, the statute indicates that an exclusion offense is, inter
alia, a crime committed “within the preceding ten years” (CPL 440.46
[5] [a]). Contrary to the People’s contention, there is no indication
that such phrase is to be measured from the date of the commission of
the offense for which defendant is seeking resentencing. In order to
adopt the People’s interpretation, we would have to add language to
the statute to provide that an exclusion offense is a crime committed
within the 10 years preceding the commission of the present felony
offense. It is well settled, however, that “ ‘a court cannot amend a
statute by inserting words that are not there, nor will a court read
into a statute a provision which the Legislature did not see fit to
enact’ ” (Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85
NY2d 382, 394, rearg denied 85 NY2d 1033, quoting McKinney’s Cons Laws
of NY, Book 1, Statutes § 363, at 525; see Janssen v Incorporated Vil.
of Rockville Ctr., 59 AD3d 15, 28).
Finally, the statute provides in that same sentence that the
relevant 10-year period excludes any time “during which the offender
was incarcerated for any reason between the time of commission of the
previous felony and the time of commission of the present felony” (CPL
440.46 [5] [a]). Thus, where the Legislature intended to use the time
of the commission of the present felony offense as the starting point
for calculating a time period, it unequivocally did so, leading
inexorably to the conclusion that it did not intend that the 10-year
period be calculated from the commission of the present felony
offense. Consequently, the People’s “suggested interpretation is
wholly at odds with the wording of the statute and would require us to
rewrite the statute. This we cannot do” (People v Smith, 63 NY2d 41,
79, cert denied 469 US 1227, reh denied 471 US 1049).
Accordingly, we conclude that the sentence should be affirmed
(see People v Sosa, ___ AD3d ___ [Feb. 8, 2011]).
Entered: February 18, 2011 Patricia L. Morgan
Clerk of the Court