People v. Rivera

The People v. Rivera, Unreported Decision, # 2608 & 1977/2000 (Sup Ct, Bronx County, February 1, 2010, Benitez, J.) the Court noted that the plain language of the 2009 DLRA did not bar parole violators, that the 2009 DLRA was a different statute than the 2004 and 2005 Acts, that the 2009 statute applied to a broader group of offenders than the earlier statutes and that the 2009 Act differed from the 2005 statute in that it did not include that earlier statute's requirement that an offender be more than three years from parole eligibility to qualify for resentencing. In Rivera, the Court concluded that it was this underlying rationale for the decision which was controlling, rather than the literal language of the holding itself: The Court of Appeals language explaining why Then could not use his incarceration on the new offense to make him eligible for resentencing under the DLRA 2 on the earlier sentence has been cited by other courts when holding that defendants who are not being held on new sentences but have been violated on parole because of new criminal conduct are not ineligible for resentencing under the DLRA 1 and DLRA 3. The word "ineligible" in the preceding sentence apparently should have read "eligible". This court concludes that People v. Then does not compel that result because the Court in that case was simply holding that defendant could not use his concurrent incarcerations under the previous A-II felony sentence and his new crime sentence to bring him within the parole eligibility requirements which determine his eligibility for resentencing on that previous A-II felony sentence". Rivera at 5.