STATE OF NEW YORK

COUNTY OF NASSAU: SUPREME COURT

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THE PEOPLE OF THE STATE OF NEW YORK
ex rel. ERIC GREEN,
RELPY TO OPPOSITION
Relator,
- against -

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
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STATE OF NEW YORK)
) ss.:
COUNTY OF NASSAU )

DANIEL SCHNEIDER, being duly sworn deposes and says:

1. I am an attorney, admitted to practice before the Courts of the State of New York and am

associated with Kent V. Moston, Attorney in Chief, Nassau County Legal Aid Society,

counsel assigned to represent the Petitioner herein and is fully familiar with the facts of

this case.

ARGUMENT

I. The Petitioner must be released because his parole term should have been terminated
automatically, pursuant to Executive Law 259-j(3-a), despite Penal Law Section 70.30(1),
because precedent holds that existence of an aggregated indeterminate sentence that is not a
drug crime will not bar application of the Executive Law.

2. The Attorney General has opposed this petition, stating that the aggregation clause of Penal

Law Section 70.30(1) renders Executive Law 259-j(3-a) inapplicable when any felony

received is not a drug crime.

3. Mr. Green is serving, in addition to his most recent drug crime, a Burglary sentence from

1996 which has aggregated with his current drug crime under Penal Law Section 70.30(1).
4. Despite the existence of this Burglary conviction, the aforementioned Executive Law is not

inapplicable. In the only written decision on the subject, Bronx Supreme Court Justice

Megan Tallmer ruled that the Executive Law remains applicable even with an aggregated

non-drug conviction. See People v. Ordonez, 10 Misc. 3d 241 (Bronx Sup.Ct. Sept. 29,

2005). There, the Petitioner sought termination of his indeterminate drug sentence

pursuant to 259-j(3-a) though he had received another indeterminate sentence for robbery

which aggregated in with the drug crime.

5. Justice Tallmer granted the writ despite the fact that the petitioner had a drug conviction

aggregated with a non-drug conviction. In doing so, she reasoned,

On its face, that section does not limit its applicability to situations in
which petitioner is serving a sentence only for a [ ] drug offense. Even if
the language of the statute was ambiguous, there is nothing in the
legislative history of the Drug Law Reform Act to indicate that the
Legislature intended to circumscribe the reach of the ameliorative changes
effected by the new law.

Ordonez, 10 Misc. 3d at 243. Clearly, to that Justice, that there was an aggregated sentence

did not automatically preclude someone from benefiting from the Executive Law. The

statue, read on its face does not limit its applicability to situations where there is only a

drug crime present. Additionally, the legislative history gives no evidence that that was the

intent when the statute was written.

6. This court did recently reject Ordonez in In the Matter of the Application of Omjasisa

Felder, 06-M13972, August 25, 2006, on a Habeas Corpus Writ alleging that Executive

Law 259-j(3-a) applied when there was felony that was not a drug crime aggregated with

the drug crime. This court reasoned that Ordonez did not apply in Felder because the non-

drug crime was a determinate sentence that aggregated with the indeterminate drug crime.
7. However, the case presently at bar is far more similar to Ordonez than it is to Felder. In

Felder, your honor was faced with a determinate sentence that was aggregated with the

indeterminate drug sentence. According to the decision, hat was the defect. Here, the

defect is cured. The burglary charge was an indeterminate sentence, as was the drug

charge. The facts here mirror the facts in Ordonez.

8. In Felder, your honor continued that “[the court in Ordonez] made no ruling as to the

[Non-drug] sentence only as to the termination of the drug sentence.” They stated, “the

Rockefeller Drug Law Reform Act does not give the court authority to terminate any

sentence other than the sentence for defendant’s drug conviction.” 10 Misc. 3d at 243-44.

However, the court granted the writ because the petitioner was still, regardless of the

existence of the other sentence, entitled to have the drug sentence lifted, and when that was

done, all of the other charges were deemed satisfied. See Id.

9. Therefore, in this case, as stated in Ordonez, “[i]n accordance with both the plain language

of the statute and the Legislature's intent, petitioner thus is entitled to have his [ ] drug

conviction sentence terminated.” 10 Misc. 3d at 243. Once the drug charge is removed,

the Burglary will clearly have long been satisfied. Thus, though this court cannot rule to

terminate the Burglary, it must rule to terminate the drug charge and once that it is done,

the court as well as the department of corrections should be satisfied that the Burglary

sentence has been completed.

 WHEREFORE, for the above reasons, in conjunction with those already stated in the writ,

Petitioner’s petition must be granted, and he must be released from parole supervision.

_________________________
DANIEL SCHNEIDER, ESQ.

Dated: September 20, 2006

Hempstead, NY
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THE PEOPLE OF THE STATE OF NEW YORK
ex rel. ERIC GREEN,

Petitioner,
VERIFICATION

- against -

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
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STATE OF NEW YORK)

) ss.:
COUNTY OF NASSAU )

DANIEL SCHNEIDER, being duly sworn deposes and says:

1. Affiant is an attorney and has read the foregoing petition and knows the contents thereof

to be true, except as to matters therein stated to be on information and belief, and as to those

matters, deponent verily believes them to be true.

2. This verification is made by the attorney and not by the relator himself because all of

the materials allegations contained in the petition are within his personal knowledge.

_____________________
DANIEL SCHNEIDER, ESQ.

Sworn to before me this

day of SEPTEMBER, 2006