PEOPLE v. MEREJILDO (2007)

Order, Supreme Court, New York County (Lewis Bart Stone, J.), entered February 3, 2006, which denied defendant's motion to be resentenced pursuant to the Drug Law Reform Act of 2005, unanimously affirmed.

One of the eligibility criteria for a defendant seeking resentencing on a class A-II felony conviction under the 2005 DLRA (L. 2005, ch. 643, § 1) is that he or she must meet the merit time eligibility requirements of Correction Law § 803(1)(d).  Correction Law § 803(1)(d)(ii) provides that merit time is not available to any person serving an indeterminate sentence for, among other things, a violent felony.

In 2000, defendant was convicted of criminal possession of a controlled substance in the second degree and the violent felony offense of criminal possession of a weapon in the third degree.   He was sentenced to consecutive terms of eight years to life and two to four years.   The motion court correctly concluded that because defendant is incarcerated pursuant to a judgment that includes a sentence for a violent felony, he is ineligible for merit time under Correction Law § 803(1)(d)(ii) and, thus, ineligible for resentencing.

While defendant presently argues that the two to four year term imposed on his weapons conviction expired, at the latest, in 2004, so that at the time of the resentencing motion he was no longer serving a sentence for a violent felony, he did not preserve that argument and we decline to review it in the interest of justice.   Were we to review this claim, we would reject it.   Pursuant to Penal Law § 70.30(1)(b), defendant's consecutive sentences are merged into a single aggregate sentence (see People v. Curley, 285 A.D.2d 274, 730 N.Y.S.2d 625 [2001], lv. denied 97 N.Y.2d 607, 738 N.Y.S.2d 290, 764 N.E.2d 394 [2001] ), with a term of ten years to life.   The Penal Law provision contradicts defendant's argument that when a life sentence and a term other than life are served consecutively, the non-life term is necessarily served first.