This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 175
The People &c.,
            Respondent,
        v.
Ally Golo,
            Appellant.




          David P. Greenberg, for appellant.
          Danielle S. Fenn, for respondent.




ABDUS-SALAAM, J. :
          In April 2004, defendant pleaded guilty to criminal
possession of a controlled substance in the third degree, a class
"B" felony, and he was sentenced in June 2004 to an indeterminate
prison term of from three and one-half to ten years.   Defendant
had committed that crime in April 2003.   Days after he was
sentenced on this drug charge, defendant was sentenced, upon his

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guilty plea to two counts each of robbery in the first degree and
of endangering the welfare of a child, in connection with
robberies that had occurred in May and June 2003.    For these
crimes, he was sentenced to two determinate seven-year prison
terms for the robbery counts to be served concurrently with each
other and two one-year terms for the endangering counts.
          Defendant was initially released to parole supervision
in September 2009.    However, his parole was revoked following his
May 2010 arrest for possessing a gravity knife, and he was
referred to a drug treatment program.    After completing the drug
treatment program, he was restored to parole supervision in
November 2010.   But less than three months later defendant was
arrested for possessing cocaine and resisting arrest, and his
parole was again revoked in September 2011.    He pleaded guilty to
a parole violation for resisting arrest and was sentenced to an
18-month parole hold.
          In March 2012, defendant moved, pursuant to the Drug
Law Reform Act of 2009 (L. 2009, ch 56 [codified in relevant part
at CPL 440.46][hereinafter DLRA-3]), to be resentenced on his
2004 conviction for criminal sale of a controlled substance in
the third degree.    Supreme Court denied the motion for
resentencing, holding that defendant was ineligible because he
had been convicted of an "exclusion offense" (CPL 440.46 [5][a])
within the ten-year period between his sentencing on his 2004
conviction for criminal sale of a controlled substance in the


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third degree and his application for resentencing.    The Court
issued its decision without the parties being present, and
without offering defendant an opportunity to appear.    The Court
found that it need not consider defendant's interest of justice
arguments for resentencing, but that even if defendant were
eligible for resentencing, the Court would still deny his motion
in the exercise of its discretion.
          The Appellate Division affirmed (109 AD3d 623 [2d Dept
2013]).   It disagreed with Supreme Court about defendant's
eligibility to be resentenced, reasoning that defendant's robbery
convictions did not constitute "exclusion offense[s]" within the
meaning of CPL 440.46 (5)(a) because they were committed after
the drug offense for which he sought resentencing.    However, it
held that Supreme Court providently exercised its discretion in
concluding that considerations of substantial justice dictated
the denial of the motion.   A Judge of this Court granted leave to
appeal (23 NY3d 1037 [2014]), and we now reverse and remit.
          As an initial matter, the People argue that Supreme
Court properly found that defendant was ineligible for
resentencing.   We are able to review that argument
notwithstanding defendant's assertion to the contrary (see CPL
470.35 [1]), and agree with the Appellate Division that the 2004
robbery convictions are not "exclusion offense[s]" under CPL
440.46 (5)(a) because defendant's convictions on the robbery
charges occurred after, not prior to, the drug offense for which


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he seeks resentencing.    An "exclusion offense" is defined as
           "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
          [Correction Law § 803 (d)(ii)]" (CPL 440.46
          (5)(a), emphasis added).

"As the clearest indicator of legislative intent is the statutory
text, the starting point in any case of interpretation must
always be the language itself, giving effect to the plain meaning
thereof" (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d
577, 583 [1998]).   Given the provision's references to a
"previous" felony and the "present" felony, the wording of the
statute indicates that exclusion offenses must have been
committed before the drug offense for which resentencing is
sought (see People v Myles, 90 AD3d 952 [2d Dept 2011]["The
statutory language was not written in anticipation of a situation
where the potential exclusion offense was committed after the
drug conviction for which the defendant seeks resentencing."]).
Our decision in People v Sosa (18 NY3d 436 [2012]) is not to the
contrary, as it concerned the interpretation of the phrase
"within the preceding ten years," not the meaning of the term
"previously convicted."
          Although we recognize the seeming anomaly that a


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violent felony committed days after the drug offense cannot count
as an exclusion offense, while the same violent felony committed
prior to the drug offense could be an exclusion offense, "it . .
. remain[s] that the law, as it is written, countenances the
disparity and is not properly rewritten to accord more perfectly
with judicial or prosecutorial notions of consistency" (People v
Sosa, 18 NY3d at 442 [2012]).    Here, as in People v Paulin, where
we addressed a different provision of the DRLA-3, we are guided
"[b]y the plain text of the statute" (17 NY3d 238, 244 [2011]).
If the wording of the statute has caused an unintended
consequence, it is up to the legislature to correct it.
           Furthermore, as we noted in Paulin, if defendants have
shown by their conduct that they do not deserve relief from their
sentences, courts can deny their resentencing applications.      "A
provision of the 2004 DLRA, incorporated by reference into the
2009 DLRA (CPL 440.46 [3]), says that a resentencing application
need not be granted if 'substantial justice dictates that the
application should be denied' (L 2004, ch 738, § 23)"(id. at
244).   Thus, while defendant's conduct after his conviction for
the drug offense cannot constitute an "exclusion offense," it is
properly considered by the court in deciding his resentencing
application.
           We agree with defendant that it was error for the
courts below to decide his resentencing motion without giving him
an opportunity to be heard.     The DLRA-3 states that on a


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defendant's application for resentencing, "the court shall offer
an opportunity for a hearing and bring the applicant before it"
(CPL 440.46 [3]; Laws of 2004, ch 73, § 23).         This language is
mandatory.   The statute also provides that "the court may also
conduct a hearing, if necessary, to determine whether such person
qualifies to be resentenced or to determine any controverted
issue of fact relevant to the issue of sentencing" (id.)           Thus,
the permissive language authorizing a hearing on the issues of
eligibility and sentencing contrasts with the unambiguous
directive that the court offer a defendant an opportunity to be
heard on the merits of the application.       There should be a new
determination of the defendant's motion, to be made after
affording him an opportunity to appear before the court (People v
Bens, 109 AD3d 664, 665 [2d Dept 2013]).

            Accordingly, the order of the Appellate Division should
be reversed, and the case remitted to Supreme Court for further
proceedings in accordance with this opinion.

*   *   *    *   *   *   *   *    *      *   *   *     *   *   *     *     *

Order reversed and case remitted to Supreme Court, Queens County,
for further proceedings in accordance with the opinion herein.
Opinion by Judge Abdus-Salaam. Chief Judge Lippman and Judges
Pigott, Rivera, Stein and Fahey concur.


Decided November 23, 2015




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