Rockefeller Drug Law Reform Resentencing Eligibility (2009): Calculating The 10 Year Look Back
Class B Drug Offense Resentence - CPL § 440.46
Determining the 10 Year Look Back Period
Step 1: Calculate the period of time between the date of the filing of the motion for resentencing1 on the present class B drug offense and the date of the commission of the "exclusion offense."
Step 2: If the period of time calculated in Step 1 is 10 years or less the defendant is ineligible for resentencing and no further calculation is necessary. If the period of time calculated in Step 1 is 10 years and 1 day or more, go on to Step 3.
Step 3: Calculate the amount of time the defendant was incarcerated for any reason between the date of the commission of the previous "exclusion offense" and the date of the commission of the present class B drug offense for which resentencing is sought.
Step 4: Subtract the time calculated in Step 3 from the time calculated in Step 1.
Step 5: If the total time resulting from the calculation performed in Step 4 is 10 years and 1 day or more, the defendant is eligible for resentencing. If the time resulting from the calculation performed in Step 4 is 10 years or less, the defendant is ineligible for resentencing.
Exclusion Offense
The "exclusion offense" occurring in the preceding 10 year look back period referenced in CPL § 440.46 (a) includes a conviction for any of the following crimes: a violent felony offense or manslaughter in the second degree, or vehicular manslaughter in the first degree, or criminally negligent homicide, or an offense defined in article 130 of the Penal Law, or incest, or an offense defined in article 263 of the Penal Law, or aggravated harassment of an employee by an inmate.
Applicable Statutes:
CPL § 440.46 Motion for resentence; certain controlled substance Offenders
(5) The provisions of this section shall not apply to any person who is serving a sentence on a conviction for or has a predicate felony conviction for an exclusion offense. For purposes of this subdivision, an "exclusion offense" is:
(a) 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: (i) a violent felony offense as defined in section 70.02 of the penal law; or (ii) any other offense for which a merit time allowance is not available pursuant to subparagraph (ii) of paragraph (d) of subdivision one of section eight hundred three of the correction law; or (b) a second violent felony offense pursuant to section 70.04 of the penal law or a persistent violent felony offense pursuant to section 70.08 of the penal law for which the person has previously been adjudicated.
Correction Law § 803(1)(d)(ii)
Such merit time allowance shall not be available to any person serving an indeterminate sentence authorized for an A-I felony offense, other than an A-I felony offense defined in article two hundred twenty of the penal law, or any sentence imposed for a violent felony offense as defined in section 70.02 of the penal law, manslaughter in the second degree, vehicular manslaughter in the second degree, vehicular manslaughter in the first degree, criminally negligent homicide, an offense defined in article one hundred thirty of the penal law, incest, or an offense defined in article two hundred sixty-three of the penal law, or aggravated harassment of an employee by an inmate.