Defendant was charged in the indictment with Criminal Sale of a Controlled Substance in the First Degree [Penal Law § 220.43], Criminal Possession of a Controlled Substance in the Second Degree [Penal Law § 220.18] and Criminal Possession of a Controlled Substance in the Third Degree [Penal Law § 220.16]. On October 11, 1984, defendant pleaded guilty to Criminal Sale of a Controlled Substance in the Second Degree [Penal Law § 220.41], in full satisfaction of the indictment and was sentenced in accordance with the negotiated plea agreement to an indeterminate sentence of six years to life. On June 20, 1990, the defendant was paroled from State Prison.

After being paroled from State prison on this case, the defendant was re-arrested and indicted on several additional felonies. On August 1, 1990, the defendant was indicted (indictment No. 8409-90) for Criminal Sale of a Controlled Substance in the Third Degree [Penal Law § 220.39]. A few weeks later, on August 30, 1990, the defendant was again indicted (indictment #

9704-90) for Criminal Sale of a Controlled Substance in the Third Degree [Penal Law § 220.39] and Criminal Possession of a Controlled Substance in the Third Degree [Penal Law § 220.16].

On January 15, 1992, the defendant was convicted after a jury trial of Criminal Sale of a Controlled Substance in the Third Degree (indictment #

8409-90) and was sentenced to an indeterminate sentence of six to twelve years in State Prison. On that same day, the defendant also pleaded guilty to Attempted Criminal Sale of a Controlled Substance in the Third Degree [Penal Law § 110/220.39], in full satisfaction of indictment #

9704-90 and was sentenced to an indeterminate sentence of three to six years in State Prison. On October 22, 1996, the defendant was paroled from State Prison on indictment #

8409-90.

On November 8, 1999, the defendant was indicted (indictment #

8054-99) once again for Criminal Sale of a Controlled Substance in the Third Degree [Penal Law § 220.39]. On January 31, 2000, the defendant pleaded guilty to Criminal Sale of a Controlled Substance in the Fifth Degree [Penal Law § 220.31], in full satisfaction of the indictment and was sentenced to an indeterminate sentence of two to four years in State Prison. Defendant's parole eligibility date scheduled for October 16, 2001 has passed. A parole hearing is scheduled for August 2007 on indictment #

8054-99. [*2]

Defendant pro se now files a motion pursuant to Chapter 643 of the Laws of 2005, The Drug Law Reform Act, seeking an order vacating the sentence in this case (indictment 817-78), and re-sentencing him on his Class A-II narcotics felony conviction to a determinate sentence in accordance with the new sentencing provisions of Penal Law §70.71.

Section 1 of Chapter 643 of the Laws of 2005 provides that:

". . . any person in the custody of the department of correctional services convicted of a class A-II felony offense defined in article 220 of the penal law which was committed prior to the effective date of this section, and who was sentenced thereon to an indeterminate term of imprisonment with a minimum period not less than three years . . ., and who is more than twelve months from being an eligible inmate as that term is defined in subdivision 2 of section 851 of the correction law, and who meets the eligibility requirements of paragraph (d) of subdivision 1 of section 803 of the correction law may, upon notice to the appropriate district attorney, apply to be re-sentenced in accordance with section 70.71 of the penal law in the court which imposed the original sentence." (emphasis added)

The defendant claims that he is eligible for re-sentencing because he was convicted of a class A-II felony. However, that alone does not qualify a defendant for re-sentencing. The legislation defines an "eligible inmate" as one who is more than twelve months from being eligible for parole or conditional release as that term is defined by Corrections Law § 851 (2). In addition, Corrections Law § 851 (2) defines "eligible inmate" as someone who is eligible for parole, or someone who will be eligible for parole or conditional release within two years. Accordingly, "[t]hese statutes, although not a model of clarity, when read together, require that, in order to be eligible for re-sentencing, an A-II offender may not be eligible for parole within three years." People v. Bautista, ___ NYS2d ___, 2006 WL 346453 (N.Y.A.D. 1 Dept.).In this case, defendant, having been released to parole on June 20, 1990, clearly does not qualify as an "eligible inmate." Defendant is not more than three years from being parole eligible since defendant has already been released to parole supervision. He is back in prison because he committed other drug sales after being released on parole (several times) and his parole has been violated. It is clear from the plain language of the Drug Law Reform Act that the legislature contemplated re-sentencing for those inmates serving their original sentence and who were not yet paroled. "The Rockefeller Drug Reform Laws were not intended to apply to those offenders who have served their term of imprisonment, have been released from prison to parole supervision, and whose parole is then violated, with a resulting period of incarceration." People v. Bagby, ___ NYS2d ___, 2006 WL 267413 (N.Y.Sup.).

Additionally, the defendant's New York State Inmate Information Sheet for his conviction on the class D felony, Criminal Sale of a Controlled Substance in the Fifth Degree, indicates that his parole eligibility date is October 16, 2001, less than three years from the filing of this motion on November 25, 2005. Thus, any reading of the defendant's parole eligibility status excludes him from consideration for re-sentencing.

Accordingly, this defendant is not eligible for re-sentencing under the Drug Law Reform Act and his motion is denied.

This constitutes the decision and order of the court.

Dated: April 11, 2006

___________________________

ROGER S. HAYES, J.S.C. [*3]