People v Frain

[*1] People v Frain 2005 NY Slip Op 50222(U) Decided on February 23, 2005 County Court, Niagara County Broderick, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 23, 2005
County Court, Niagara County

People of the State of New York,

against

Barry Frain, Defendant.



2001-091



Matthew J. Murphy, III, Esq.,

Niagara County District Attorney

For the People

Barry Frain, Defendant, appearing pro se

For the Defendant

Peter L. Broderick, J.

The defendant has made a pro se motion pursuant to Section 440.20 (3) of the New York State Criminal Procedure Law seeking to be resentenced to a lesser term under the more favorable provisions of the recently enacted "2004 Drug Reform Act" [NY Legis 738 (2004)].

Defendant stands convicted, by plea, of the class C-felony of attempted third-degree sale of cocaine. That plea was entered on July 10, 2001, before Niagara County Judge Sara S. Sperrazza.

On August 15, 2001, defendant was sentenced to five to ten years incarceration.

On December 14, 2004, the New York Legislature passed ameliorative drug sentencing laws designed to remove the perceived harshness of the Rockefeller Drug Laws in New York [NY Legis 738 (2004)] the so-called "Drug Reform Act." This bill, which became effective January 13, 2005, altered the punishment for most narcotic crimes. In most cases, as perhaps in defendant's, the punishment was reduced. In some instances, however, the punishment was enhanced. The bill provided that the sections applicable to punishment would apply to all crimes committed after the effective date of January 13, 2005.

Subsequent case law has held that despite that clause, however, the ameliorative nature of the new law requires that it be applied to all cases that are to be sentenced after January 13, 2005, even though the crimes were actually committed prior to that date. [See, People v. Denton, 2005 WL 236167 (NY Sup) (Sup Ct 2005); People v. Behlog, 74 NY2d 237, 544 NYS2d 804 (1989); [*2]People v. Acoff, 289 AD2d 1085, 735 NYS2d 329 (4th Dept 2001); People v. Main, 195 AD2d 1025, 600 NYS2d 523 (4th Dept 1993) and People v. Carter, 173 AD2d 631, 570 NYS2d 216 (2nd Dept 1991). Also see, People v. Luis Estela, NYLJ February 3, 2005.]

The issue presented here is whether the ameliorative provisions can be applied retroactively to one already sentenced and serving his sentence?

Such a result would be contrary to the Legislature's express intent [cf., People v. Denton, 2005 WL 236167 (NY Sup) (Sup Ct 2005)]. That body has already spoken in the act when they addressed how to ameliorate for defendants already sentenced - and still serving - time prior to the passage of the new legislation. Such prisoners are enabled to seek additional one-sixth "merit time" allotments, provided they meet certain qualifiers [NY Legis 738 (2004), Section 30; Correction Law § 803 (1) (d) (ii), 2-a (a) and (g)].

Beyond that " [h]owever, the ameliorative sentencing provisions do not apply to defendants who have already been sentenced on the effective date of the legislation" [People v. Denton, 2005 WL 236167 (NY Sup) (Sup Ct 2005)]. [Also cf., People v. Walker, 186 AD2d 1064, 588 NYS 486 (4th Dept 1992).]

While this Court might be conceptually inclined to extend the ameliorative provisions of the new act to defendants in Mr. Frain's situation, both the plain words of the Legislature and the existence of the Denton ruling preclude such an option. While not binding upon this Court, the logic of Denton is compelling. Even were it not, the plain wording of the statute makes it evident that the Legislature duly considered the issue of how to treat prisoners serving their sentences under the old law and determined upon a particular course spelled out in the legislation. Even though the Legislature's choice may not seem to make much sense, their choice is clear. It was within their legislative function to make that choice. It is not within this Court's power to second-guess the Legislature. If constitutional, which this is, it is this Court's responsibility to simply apply the law as it exists, since it is binding upon this Court.

As this Court reads the statute, the legislative history and the existing case law, the new act applies as follows: 1.Where the crime (and consequently the sentence) occurs after January 13, 2005 (the effective date of the new statute), the provisions of the new act apply;2.Where the crime is committed before January 13, 2005, but the sentencing takes place after that date, the provisions of the new act apply [per the logic in Denton];3.Where both the crime and the sentencing is completed before January 13, 2005, (that is, where the sentence is pronounced, served and completed), the new act is simply inapplicable;

Where the crime is committed before January 13, 2005, and where the sentencing was rendered prior to that date, but the defendant is still serving a portion of that sentence, he is not eligible for resentencing by the trial court [FN1]. Instead, he must - by the terms of the new act itself - apply to the [*3]Department of Corrections seeking to have the new act's provisions for increased "merit time" reductions applied to his sentence [cf, February 10, 2005, memorandum from the Department of Corrections regarding supplemental merit time reviews]. [In the unlikely event that DOC fails or refuses to properly apply the appropriate provisions, the defendant must apply to the superior court situated in the jurisdiction where he is incarcerated for an order (in the nature of a writ of mandamus) compelling DOC to apply the statute. Recourse, under such circumstances, is not to the criminal court that passed the initial sentence.]

Since there is no need for an evidentiary hearing here, there is no entitlement to the appointment of public counsel for the defendant [People v. Richardson, 159 Misc 2d 167, 603 NYS2d 700 (Kings Co 1993) and Section 722 (4) of the New York State County Law].

The defendant's 440 motion is denied in all respects.

This constitutes the decision and order of the Court.

Hon. Peter L. Broderick, Sr.

Dated: February 23, 2005Niagara County Court Judge

NOTICE AS TO FURTHER APPEAL PURSUANT TO §1039 OF THE MISCELLANEOUS RULES FOR THE FOURTH DEPARTMENT

Pursuant to Criminal Procedure Law sections 450.15 (1) and 460.15, a defendant has the right to apply for leave to the intermediate appellate court (Supreme Court, Appellate Division, Fourth Judicial Department, Rochester, New York). A defendant may apply for leave to appeal from an order of the County Court by making an application to the intermediate appellate court to which the appeal is sought to be taken (see, 22 NYCRR 1000.13 [o]) seeking an order granting permission to appeal to that appellate court and certifying that the case involves questions of law or fact which ought to be reviewed by the intermediate appellate court. Such application must be made in a manner determined by the rules of the appellate division of the department in which such intermediate appellate court is located (see, 22 NYCRR 1000.13 [o]). Denial of the initial application for leave to appeal is final, and no further application may be made to any other Judge or Justice (see, CPL 460.15 (2) and 22 NYCRR 1000.13 [o]).

Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, defendant may be able, by applying to the intermediate appellate court, to obtain assignment of counsel and leave to prosecute the appeal as a poor person and to dispense with printing. See McKinney's New York Rules of Court §§1000.13 and 1000.14 (22 NYCRR 1000.13 and 1000.14). Footnotes

Footnote 1:A-1 drug inmates, however, are specifically permitted by the new statute to apply to the original sentencing court, via a 440 motion, to have their 15-25 years to life sentences converted [see NYS Assembly Memorandum in Support of Legislation for Bill A11895, page four].