People v. Merejildo

In People v. Merejildo, 45 AD3d 429, 846 N.Y.S.2d 52 (1st Dept 2007), the Defendant was convicted of Criminal Possession of a Controlled Substance in the Second Degree and sentenced to an indeterminate sentence with a term of 8 years to life imprisonment. He was also sentenced to a consecutive sentence, apparently at the same time, with an indeterminate term of 2 to 4 years for the crime of Criminal Possession of a Weapon in the Third Degree. He applied for a reformation of his Class A-II felony sentence under the 2005 DLRA. Pursuant to that statute, a Defendant cannot receive a resentence for a Class A-II felony unless he is eligible for "Merit Time". In order to be eligible for Merit Time, inter alia, a Defendant cannot be serving a sentence for a violent felony offense. Defendant's sentence for his weapons conviction was such a violent felony offense. For that reason, the trial court denied Defendant's resentencing motion. He appealed that denial. The Defendant argued that he had already completed serving his 2 to 4 year weapons sentence and so was no longer ineligible for Merit Time under the Correction Law. For this reason, he argued, he was also no longer barred from resentencing eligibility. The Court denied Defendant's motion, holding that he had not preserved the issue for appeal and declined to review the issue in the interests of justice. The Court then also opined in dicta, that if it had reached the merits of Defendant's claim, it would also be denied. The Court noted that when two consecutive sentences are imposed under Penal Law 70.30 (1) (b) the two sentences merge to form an aggregate term. The Court held that there was no basis to conclude that the Defendant's weapons sentence had necessarily been served before his narcotics sentence.