Application for Resentencing After Sentence Had Already Run
In People v. Delk, 59 AD3d 733, 875 NYS2d 101 [2d Dept 2009], the defendant was sentenced concurrently for a class A-II felony drug offense and a violent felony weapon offense.
When he applied for resentencing, his weapon sentence had already run.
The 2005 DLRA barred offenders not eligible for "merit time" from the statute and defendant's weapon felony subjected him to that bar.
The Court held that the defendant was still effectively serving his concurrently imposed weapon sentence when he applied for resentencing and was thus not eligible to be resentenced even though the five-year term of that weapon offense had finished.
Delk involved the 2005 DLRA rather than the 2009 act and construed the Penal Law's concurrent rather than consecutive sentencing calculation provisions.