Summary
The Appellate Division, Third Department, reversed an order denying Rashad H. Scott’s application for resentencing under the Drug Law Reform Act of 2009. The court held that Scott’s later murder convictions did not constitute exclusion offenses under CPL 440.46 because he was not previously convicted of those offenses when convicted of the drug felonies, and the applicable lookback period did not reach the earlier crimes. The matter was remitted for further resentencing proceedings.
Topics
Practice areas
Questions Presented
- Whether Scott's 1999 second-degree murder conviction constituted an exclusion offense under CPL 440.46(5)(a) so as to bar resentencing of his 1998 drug conviction.
- Whether Scott's incarceration after his arrest for the 1997 murders brought the murder offenses or convictions within CPL 440.46(5)(a)'s 10-year lookback period.
Holdings
- A conviction entered after the qualifying drug conviction is not an exclusion offense under CPL 440.46(5)(a), even if the underlying crime was committed before the drug offense, because the statute requires that the person have been previously convicted of the exclusion offense.
- Post-commission incarceration occurring after the qualifying drug felonies does not extend or otherwise bring the earlier murder offenses or later murder convictions within CPL 440.46(5)(a)'s 10-year lookback period.
Key quotations
“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” ([*1])
“only pre-drug felony incarceration time” ([*2])
“countenances the disparity and is not properly rewritten to accord more perfectly with judicial or prosecutorial notions of consistency” ([*2])
Factual background
Scott was convicted in 1998 of, among other offenses, criminal possession and criminal sale of a controlled substance in the third degree, receiving concurrent prison terms of 7 to 21 years. He committed the crimes underlying his later second-degree murder convictions in 1997, but he was not convicted of those crimes until 1999, when he received a sentence consecutive to his drug sentence. In 2023, he applied for resentencing under the Drug Law Reform Act of 2009, asserting that the 1999 murder convictions did not make him ineligible because they occurred after his 1998 drug convictions.
Procedural history
Scott was convicted of class B drug felonies in 1998 and sentenced to concurrent terms of 7 to 21 years. He was later convicted of second-degree murder for crimes committed in 1997 and received an aggregate sentence consecutive to the drug sentence. In March 2023, he sought resentencing under CPL 440.46; County Court denied the application on the ground that the murder conviction was an exclusion offense. The Appellate Division reversed and remitted for further resentencing proceedings.
Remand instructions
Remand to the County Court of Schenectady County for further resentencing proceedings in accordance with the procedure set forth in CPL 440.46 and not inconsistent with the Appellate Division's decision.