This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 58
The People &c.,
            Appellant,
        v.
Jarrod Brown,
            Respondent.




           Danielle S. Fenn, for appellant.
           David Crow, for respondent.




LIPPMAN, Chief Judge:
           The issue presented by this appeal is whether the 2011
amendments to CPL 440.46 expanded the class of defendants
eligible for resentencing under the Drug Law Reform Act to
include those who are on parole at the time resentencing is
sought.   We left this question open in People v Paulin (17 NY3d
238, 243 [2011]) and People v Santiago (17 NY3d 246, 247 [2011]),


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and now hold that the amendments did expand eligibility to
parolees, and affirm the Appellate Division order (115 AD3d 155
[2014]) upholding the resentencing of the paroled defendant under
that provision.
          In the summer of 2001, defendant sold cocaine to an
undercover police officer in Queens.   On May 30, 2002, defendant
pleaded guilty to one count of third-degree criminal sale of a
controlled substance, a class B felony, and was sentenced to an
indeterminate prison term of six to twelve years to be followed
by three years of postrelease supervision.   He was conditionally
released on April 15, 2011, with a maximum expiration date of
July 16, 2017.
          While on parole for the instant offense, defendant
moved for resentencing pursuant to CPL 440.46. The People opposed
on grounds that he was ineligible for resentencing under that
provision because he was not currently incarcerated.   Defendant
contended that he was eligible for relief due to the 2011
amendments to section 440.46, which now reflected the merged New
York State Department of Correctional Services and the New York
State Division of Parole under a single agency -- the New York
State Department of Corrections and Community Supervision
("DOCCS") (see L 2011, ch 62, pt. C, subpt. B, sec 79).1


     1
          As originally enacted, to be eligible for resentencing
under CPL 440.46 an individual had to be convicted of a class B
drug felony and "a [ ] person in the custody of the department of
correctional services" (L 2009, ch 56, part AAA, § 9 [enacting

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           On July 31, 2012, Supreme Court granted defendant's
motion for resentencing.   The court concluded that the revised
section 440.46 did "not distinguish between defendants who are
incarcerated and those who are on parole but are not
incarcerated."    The court resentenced defendant to a seven-year
determinate prison term to be followed by three years of post-
release supervision, making the maximum expiration date of his
sentence July 16, 2012.
           The Appellate Division unanimously affirmed holding
that the plain language of section 440.46, when read together
with Executive Law section 259-i (2)(b), meant that non-
incarcerated defendants on parole were in the "custody" of DOCCS
and, thus, were eligible for resentencing (People v Brown, 115
AD3d at 158).    The court further held that because CPL 440.46 was
a remedial statute, it should be liberally construed (id. at
161).   A Judge of this Court granted the People leave to appeal
(23 NY3d 961 [2014]), and we now affirm.
                              *     *     *
           "[T]he governing rule of statutory construction is that
courts are obligated to interpret a statute to effectuate the
intent of the Legislature, and when the statutory language is
clear and unambiguous, it should be construed so as to give



CPL 440.46(1)]). Accordingly, only incarcerated individuals were
eligible to apply for resentencing under CPL 440.46 (see People v
Paulin, 17 NY3d 238, 243 [2011]; People v Santiago, 17 NY3d 246,
247 [2011]).

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effect to the plain meaning of the words used" (People v
Williams, 19 NY3d 100, 103 [2012], quoting People v Finnegan, 85
NY2d 53, 58 [1995]).   The language of CPL 440.46 (1) encompasses
"any person in the custody of [DOCCS]" (emphasis added).    A non-
incarcerated parolee is within the "legal custody" (Executive Law
§ 259-i [2][b]) of DOCCS.    Thus, the plain meaning of CPL 440.46
(1) leads to the conclusion that a non-incarcerated parolee is
eligible to apply for resentencing under the statute.
          Even if the plain language of CPL 440.46 were
ambiguous, further analysis would lead us to the same conclusion.
First, the People's contention that the Legislature limits use of
the term "custody" to defendants who are incarcerated is
contradicted by the language of several statutes.   Executive Law
§ 259-i (2)(b), for example, states that a parolee shall be in
the "legal custody" of DOCCS until, among other possibilities,
"return to imprisonment in the custody of the department"   (see
also Correction Law § 275 [using both "legal custody" and
"custody" in reference to a person who has been granted
conditional release]; CPL 410.50 (1) ["Custody. A person who is
under a sentence of probation is in the legal custody of the
court that imposed it pending expiration or termination of the
period of the sentence"]).   In fact, multiple provisions of
Executive Law § 259-i use the phrase "imprisonment in the custody
of the department" or "inmate in the custody of the department"
to clarify that they refer only to incarcerated persons (see


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Exec. Law §§ 259-i [2][c] [A][iv], [2][d][i], [d][ii],
[3][a][i]).
          Furthermore, in Matter of Hawkins v Coughlin (72 NY2d
158 [1988]), this Court rejected an argument that "custody"
inherently refers only to incarcerated persons.   There, in
determining that the defendant was not entitled to a credit
pursuant to Penal Law § 70.30 (3), we said that the term
"custody," as used in that statute, meant "'confinement' or
'detention' under guard and not 'constructive custody' such as
release on parole or bail" (72 NY2d at 162).   The Court referred
to the legislative history of the statute and determined that
"the Legislature intended the provision to apply only to time
spent in some type of 'actual' custody" (id. at 163).    The
legislative history of CPL 440.46, however, differs greatly from
that attributed to Penal Law § 70.30 (3).   In fact, the intent of
the DLRA "was to grant relief from what the Legislature perceived
as the 'inordinately harsh punishment for low level non-violent
drug offenders' that the Rockefeller Drug Laws required" (Paulin,
17 NY3d at 244, quoting Assembly Sponsor's Mem, Bill Jacket, L
2004, ch 738 at 6).
          Contrary to the People's contention, the 2011
amendments were not purely budgetary or technical changes.     The
2011 law emphasized "the evolution of the sentencing structure"
toward a "focus on reentry," and the "commonality of purpose
governing the fundamental missions of both agencies" to "provide


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for a seamless network for the care, custody, treatment and
supervision of a person, from the day a sentence of state
imprisonment commences, until the day such person is discharged
from supervision in the community" (L. 2011, ch 62, Part C,
Subpart A, § 1).
          Finally, remedial statutes such as the DLRA should be
interpreted broadly to accomplish their goals -- in this case the
reform of unduly harsh sentencing imposed under pre-2005 law (see
NY Statutes § 321 ["Generally, remedial statutes are liberally
construed to carry out the reforms intended and to promote
justice"]).   In People v Sosa (18 NY3d 436 [2012]), we
acknowledged that the language of CPL 440.46 (5) was potentially
ambiguous and noted that the DLRA is a remedial statute that
should be read broadly unless the limitation proposed is "clearly
expressed" (18 NY3d at 440-441).   We also noted that any
ambiguity in CPL 440.46's eligibility section should be read in
favor of the applicant because a finding of eligibility is simply
the first step in the resentencing process -- the ultimate
decision lies in the exercise of discretion of the reviewing
judge as part of the court's "substantial justice" determination
(id. at 443, citing CPL 440.46[3]).    Furthermore, this
interpretation of CPL 440.46 corrects the anomaly under the pre-
merger law of permitting resentencing for parole violators who
have been returned to prison, but not for those who had complied
with the terms of their parole (see Paulin, 17 NY3d at 244), and


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is consistent with Santiago, which permitted resentencing where a
defendant was incarcerated when he or she applied but was
released before a determination was rendered on the application.
          Accordingly, the order of the Appellate Division should
be affirmed.




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People of the State of New York v Jarrod Brown
No. 58




READ, J. (DISSENTING):
          When we decided People v Paulin (17 NY3d 238 [2011])
four years ago, there was no dispute that CPL 440.46 limited its
resentencing relief to incarcerated persons; parolees were
ineligible.   This was so because the statute applied to "[a]ny
person in the custody of the department of correctional services"
(emphasis added), the agency that ran the state prison system
when this provision was enacted as part of the 2009 Drug Law
Reform Act (2009 DLRA).   We observed that "in making this
distinction" between prisoners and parolees, "the Legislature
recognized that the burden of inordinately harsh punishment
[imposed by the Rockefeller Drug Laws] falls most heavily on
those who are in prison" (id. at 244 [internal quotation marks
omitted] [emphasis added]).
          After their convictions for class B drug felonies,
Paulin and Pratts, the defendant in a companion case, were
sentenced and incarcerated, eventually released on parole,
violated their parole and so were reincarcerated.   When the 2009
DLRA took effect, they applied for resentencing.    The wrinkle in
Paulin and Pratts, then, was that the defendants were in prison
for violating their parole, and the question presented was


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whether this made them ineligible for resentencing under CPL
440.46.
          After the appeals had been briefed but before they were
argued, the Governor signed chapter 62 of the laws of 2011.    As
part of the State's enacted budget for fiscal year 2011-2012,
various State agencies and entities were restructured,
principally to save money by streamlining operations and
rationalizing missions.   Chapter 62, an article VII budget bill,
made those changes to permanent law necessary to effectuate or
reflect several of these restructurings, including the merger of
the Department of Correctional Services and the Division of
Parole to form a combined Department of Corrections and Community
Supervision (see generally Pataki v New York State Assembly, 4
NY3d 75, 83 [2004], quoting NY Const, art VII, §§ 2, 3 ["The
Governor submits a budget to the Legislature accompanied by 'a
bill or bills containing all the proposed appropriations and
reappropriations included in the budget and the proposed
legislation, if any, recommended therein'" [emphasis added]).
          Defense counsel for Paulin and Pratts wrote to inform
us of this development.   He recognized that chapter 62 did not
govern his clients' appeals because the orders denying them
resentencing relief predated the legislation's effective date.
He nonetheless contended that "the amendments, together with the
new law's integrated statement of legislative intent, confirm
what we argued in our previously filed briefs, i.e., that a


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plain-language interpretation of CPL § 440.46 advances the
legislative intent that motivated the 2009 DLRA."
           We subsequently held in Paulin that "prisoners who have
been paroled, and then reincarcerated for violating their parole,
are not for that reason barred from seeking relief under [CPL
440.46]" (4 NY3d at 242).   This was so, we opined, because
"Paulin and Pratts fit squarely within the text of the 2009 DLRA"
(id. at 243); that is, they were in prison when they filed their
applications for resentencing under the 2009 DLRA (see also
People v Santiago, 17 NY3d 246 [2011] [a prisoner who applied for
resentencing under the 2009 DLRA while incarcerated remains
eligible for relief even if paroled before the application is
ruled on]).   We declined to consider chapter 62, observing in a
footnote that "[a] recent amendment changed the words 'department
of correctional services' to 'department of corrections and
community supervision.'   The change is of no consequence in these
cases.   We need not decide its effect, if any, on other
situations" (id. at * [citation omitted]).
           The Court now holds that this name change expanded
resentencing eligibility under the 2009 DLRA "to include those
who are on parole at the time resentencing is sought" (see
majority op at 1).   The majority principally relies on the text
of section 440.46, as amended by chapter 62, and the principle
that "remedial statutes such as the DLRA should be interpreted
broadly to accomplish their goals -- in this case the reform of


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unduly harsh sentencing imposed under pre-2005 law" (id. at 6).1
           While we depend first and foremost on the text of a
statute to determine what the Legislature intended, we have
always recognized that text may not properly be read in isolation
and that statutes must be construed as a whole; i.e., text
derives meaning within a context (see Friedman v Connecticut Gen.
Life Ins. Co., 9 NY3d 105, 115 [2007]).   Here, the relevant
statute is chapter 62 of the laws of 2011, part C, subparts A and
B.   Subpart A includes the statement of legislative intent to
support merger of the Department of Correctional Services and the
Division of Parole to form the Department of Corrections and
Community Supervision, and amends substantive law as necessary to
create the new agency; e.g., by adding a new article 8, entitled
"Community Supervision," to the Correction Law.
           Subpart B, by contrast, merely enacts amendments as
necessary to reflect the merger.   In furtherance of this purpose,
sections one through 48 of subpart B make name change and other
minor technical amendments to the Correction Law, and sections 49
through 173 march through 35 other titles of New York's
Consolidated Laws, substituting "Department of Corrections and


      1
      The majority also states that its interpretation "corrects
the anomaly under the pre-merger law of permitting resentencing
for parole violators who have been returned to prison, but not
for those who had complied with the terms of their parole,"
citing Paulin (majority op at 7). In Paulin, however, we
expressly rejected the idea, advanced by the People in that case,
that any such purported "anomaly" created an absurd result that
the Legislature never would have intended.

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Community Supervision" for "Department of Correctional Services"
or "Division of Parole."2   No changes in substantive law
accompany these name change amendments; only additional technical
corrections were effected, such as emendations to replace agency
names made obsolete by previous government restructurings (e.g.,
"Office of Children and Family Services" for "Division for
Youth"), to render the language gender-neutral (e.g, "him or her"
for "him") or to correct typographical errors.   The amendment of
section 440.46 to replace "Department of Correctional Services"
with "Department of Corrections and Community Supervision"
appears in one of the 17 sections in subpart B where these minor
changes were made to provisions in the Criminal Procedure Law.
          Thus, while the merger itself may be said to carry out
the Legislature's judgment that a unitary agency responsible for
all offenders makes sense for purposes of sentencing and
rehabilitative as well as budgetary policy, the same cannot be


     2
      The titles amended were the Abandoned Property Law, the
Alcohol and Beverage Control Law, the Civil Practice Law and
Rules, the Civil Rights Law, the Civil Service Law, the County
Law, the Court of Claims Act, the Criminal Procedure Law, the
Education Law, the Election Law, the Environmental Conservation
Law, the Executive Law, the Facilities Development Corporation
Act, the Family Court Act, the General Business Law, the General
Municipal Law, the Labor Law, the Legislative Law, the Mental
Hygiene Law, the Municipal Home Rule Law, the Penal Law, the
Public Buildings Law, the Public Health Law, the Public Officers
Law, the Railroad Law, the Retirement and Social Security Law,
the Social Services Law, the State Administrative Procedure Act,
the State Finance Law, the State Technology Law, the Surrogate
Court's Procedure Act, the Tax Law, the Town Law, the Vehicle and
Traffic Law and the Workers' Compensation Law.

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said for the 2011 amendment of section 440.46.         The majority
gives substantive law meaning to a mere name change amendment,
which is belied by the context in which it was adopted as part of
an article VII budget bill.     And since this name change amendment
was not intended to have any remedial effect, its enactment
presents no occasion for us to interpret section 440.46
differently and more broadly now than we did in Paulin.
             The majority highlights, and obviously agrees with,
policy considerations that favor allowing nonincarcerated
parolees to apply for the sentencing relief made available by
section 440.46.     But it is up to the Legislature, not the courts,
to decide whether to expand this provision's ameliorative sweep,
and I cannot agree that the Legislature has done so.           At most,
the 2011 amendment of section 440.46 created an ambiguity easily
resolved by considering its place within chapter 62, part C as a
whole.   Finally, the restructuring of State agencies and entities
through the budget process is routine.         I therefore worry about
the potential consequences of today's decision to alter
substantive law on the authority of a run-of-the-mill name change
amendment appearing in an article VII budget bill.         Accordingly,
I respectfully dissent.
*   *    *     *   *   *   *   *    *      *   *   *   *   *     *     *      *
Order affirmed. Opinion by Chief Judge Lippman. Judges Pigott,
Rivera, Stein and Fahey concur. Judge Read dissents in an
opinion in which Judge Abdus-Salaam concurs.

Decided May 14, 2015

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