People v Singletary

[*1] People v Singletary 2005 NY Slip Op 50441(U) Decided on February 18, 2005 Supreme Court, New York County Kahn, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2005
Supreme Court, New York County

THE PEOPLE OF THE STATE OF NEW YORK,

against

Carl Singletary, Defendant.



2427/2004

Marcy L. Kahn, J.

Defendant Carl Singletary, currently awaiting sentence on his conviction by plea of guilty as a second felony offender to a drug felony committed prior to the enactment of the 2004 Drug Law Reform Act (DLRA),[FN1] moves for modification of his promised sentence, seeking the retroactive application of the DLRA's sentencing and drug treatment provisions to his case. The People oppose the motion.

I.PROCEDURAL HISTORY

On January 23, 2004, defendant was arrested and charged with criminal possession of a controlled substance in the seventh degree (PL §220.03) based upon his alleged possession of more than one-quarter ounce of cocaine earlier that day. Police alleged that defendant was found in the restroom of a nightclub in possession of 22 tiny zip-lock bags of cocaine, and when police approached, he attempted to flush the 22 bags down the toilet. On May 7, 2004, the grand jury returned an indictment charging defendant with criminal possession of a controlled substance in the third degree (PL §220.16[1]), criminal possession of a controlled substance in the fourth degree (PL §220.09[1]), and attempted tampering with physical evidence (PL §110/215.40[2]) based upon the January 23, 2004 incident.

On November 29, 2004, pursuant to a negotiated plea agreement, defendant pleaded guilty to one count of attempted criminal possession of a controlled substance in the fourth degree (PL §110/220.09[1]) in full satisfaction of the indictment. Defendant admitted his status as a second felony offender, and was promised a sentence of two-to-four years in state prison, which was then the minimum sentence available for a predicate felon convicted of a class D felony. At that time, this court agreed to recommend that defendant be enrolled in a drug program during his incarceration.

On December 14, 2004, subsequent to defendant's guilty plea but prior to imposition of sentence, the Governor signed into law the DLRA, which makes significant changes in New York's penological scheme for drug offenses. On January 10, 2005, when the parties appeared in [*2]court for sentence, defendant moved orally, pro se, for, inter alia, modification of his promised sentence from incarceration to long term in-patient substance abuse treatment, relying on the intervening enactment of the DLRA. Defense counsel adopted a portion of defendant's argument, and the court adjourned the case for submission of legal memoranda addressing two issues: 1) whether the determinate sentencing scheme contained in the 2004 DLRA should be applied retroactively to defendant's case; and 2) whether this court has the authority under the DLRA to order that defendant be enrolled in the Comprehensive Alcohol and Substance Abuse Treatment program (CASAT) operated by the Department of Correctional Services (DOCS), in light of the existing plea agreement and the opposition of the People to such a direction. The court received legal memoranda from the parties and on February 8, 2005, heard oral argument on these issues.

II.2004 DRUG LAW REFORM ACT

The enactment of the DLRA was the legislative response to years of nearly universal calls to amend the Draconian Rockefeller drug laws. The act comprises a complex scheme of significant revisions to the penal, criminal procedural, correction and executive laws relating to felony level drug offenders.

These revisions include changes in the definition of class A felony drug possession crimes; substitution of a determinate sentencing scheme for all drug-related felony offenses; modification to the formulas for calculating the service of terms of incarceration; revisions to the rules of the correctional system regarding the conditional and temporary release of inmates from incarceration; authorization for court-ordered substance abuse treatment for drug offenders sentenced to state prison; establishment of a resentencing option for those sentenced to life terms on conviction of A-I felony drug offense under prior law; early termination of parole for some drug offenders; and shortened periods of post-release supervision for drug offenses.

The provisions at issue here relate to the new sentencing scheme found in sections 36 and 20 of the DLRA and set forth the authorized sentences for a person convicted of a felony drug offense. Section 36 of the DLRA adds sections 70.70 and 70.71 to the Penal Law. These sections replace the old indeterminate sentencing scheme for all felony drug offenses with new determinate sentencing provisions. In every instance, except that of a second felony drug offender having a prior violent felony conviction, the minimum sentences required by PL §§ 70.70 and 70.71 are shorter than the minimum sentences that were required under the old law. For a second felony drug offender who stands convicted of a class D felony drug offense, such as defendant, the sentencing range under the old law would have been an indeterminate prison term between two-to-four and three and one-half-to-seven years. (PL 70.00[2][d]). Under the

new law, however, the available sentencing range would be a determinate prison term between one and one-half and four years. (PL §70.70[3][b][iii]).

Section 20 of the DLRA adds a new section 60.04 to the Penal Law which establishes the dispositions authorized upon a person's conviction of a felony drug offense. In subdivision 6, the new law provides the sentencing court with the discretionary authority to order, upon motion of the defendant, that DOCS permit the defendant to participate in CASAT, provided that the [*3]defendant meets the standards of the correctional system for admission to the program.[FN2] Under the old law, while the sentencing court could recommend the CASAT program, DOCS made the ultimate decision regarding a defendant's enrollment into the CASAT program.

The issue here is whether sections 20 and 36 of the DLRA are to be applied retroactively to crimes which occurred prior to the effective date of the new law. The operative language of section 41(d-1) of the DLRA states: [T]he provisions of sections twelve, fourteen, fifteen, eighteen, twenty, twenty-four twenty-five, twenty-nine, thirty-three, thirty-five, and thirty-six of this act shall take effect of the thirtieth day after it shall have become a law, and such provisions, with the exception of subdivision six of section 60.04 of the penal law, as added by section twenty of this act, shall apply to crimes committed on or after the effective date thereof . . . .

(L. 2004, Ch. 738, §41[d-1])(emphasis added). The sections specified in section 41(d-1) became effective on January 13, 2005.

III.DISCUSSION

A.Application of Sections 20 and 36 DLRA to Crimes Committed Before January 13, 2005

Sections 36 and 20 of the DLRA constitute ameliorative changes to the prior drug laws, to the extent that they provide for a reduction in the minimum penalties for most drug-related offenses and allow for the possibility of a defendant's early release from state prison based on his or her successful completion of CASAT. The principal question presented here is whether these ameliorative changes in the law apply retroactively to defendant Singletary, who committed his crime and pleaded guilty prior to January 13, 2005, but who had not yet been sentenced as of that date.

Generally, statutes are to be construed as prospective in operation only, and are not to receive a retroactive construction unless their language expressly or implicitly so provides. (NY Statutes, §51 at 87-88 [McKinney 2005]; People v. Oliver, 1 NY2d 152, 157 [1956]). An exception to the general presumption [*4]against retroactivity exists for ameliorative changes in the law which reduce the punishment for a particular crime. (People v. Behlog, 74 NY2d 237, 240 [1989]; People v. Oliver, 1 NY2d at 160). Under this amelioration doctrine, where the legislation does not specifically address the issue, it is presumed that the punishment standard at the time of sentencing, rather than that in effect at the time of the commission of the crime, governs the defendant's sentence. (People v. Behlog, 74 NY2d at 240; People v. Oliver, 1 NY2d at 160). This presumption is based on the assumption that, absent some evidence to the contrary, the legislature has determined that the new penalty satisfies society's present view of the appropriate penal sanction. (People v. Behlog, 74 NY2d at 240; People v. Roper, 259 NY 170, 180 [1932]). Should the legislature express its view opposing the retroactive application of an ameliorative amendment, however, the defendant must be tried and sentenced under the law in effect at the time of the commission of the crime. (People v. Behlog, 142 AD2d 983 [4th Dept. 1988], aff'd 74 NY2d 237 [1989]; People v. Festo, 96 AD2d 765, 766[1st Dept. 1983], aff'd 60 NY2d 809 [1983]).

Applying these rules, where an ameliorative modification to a penal statute is silent as to its application to crimes committed prior to its enactment, the new law may be retrospectively applied to defendants who committed their crimes under the old law but who had not yet been sentenced at the time the new law became effective. (See People v. Oliver, supra, 1 NY2d at 160 [explaining that question of ameliorative statute's retroactive application is "solely one of legislative design" and finding "no express instructions in the statute as to its effect on prior behavior," Court applied statute retroactively]; People v. Behlog, supra, 74 NY2d at 239-240 [statute changing definition of grand larceny by increasing the value requirement of the stolen property, but silent as to its application, held retroactively applicable to defendants convicted under prior law and awaiting sentence]).

By contrast, where the legislature has expressed its preference for prospective application of an ameliorative provision, the doctrine's presumption governing ambiguous enactments is overcome, and does not replace the sanctions imposed under prior law. Thus, in People v. Festo, 60 NY2d 809 (1983), aff'g on dec. below, 96 AD2d 765, the Court of Appeals affirmed the Appellate Division's ruling denying retroactive application of a then-newly enacted ameliorative statute which had reduced the punishment for the drug offense committed by the defendant. In Festo, the Appellate Division, First Department had acknowledged "the general rule that where a statute reduces the punishment which may be imposed for a crime committed before the statute was enacted but for which sentence is imposed after the statutory amelioration, the ameliorative statute ordinarily vests the court with the discretionary power to impose the lesser [*5]punishment provided by the new law" (96 AD2d at 766 citing People v. Oliver, supra), and observed that "[w]ere we free to apply that rule in this case we might well be inclined to do so." (Id.). Nonetheless, that court went on to explain that despite its inclinations, it was not writing on a clean slate. It had no discretionary power to exercise, the Appellate Division explained, due to the language in the statute expressly rendering its application prospective. The language at issue in Festo stated:

Except as provided in section three of this act, the provisions of this act do not apply to or govern the construction of and punishment for any offense committed prior to the effective date of this act, or the construction and application of any defense to a prosecution for such an offense. Such an offense must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if this act had not be enacted.

(Id.).

In this case, as in People v. Festo, supra, the Legislature directly addressed the retroactivity of its new statute in express language. It did so by stating that sections 20 and 36 shall take effect 30 days after having been signed into law, and that such provisions, with the exception of section 60.04(6), "shall apply to crimes committed on or after the effective date thereof . . . ." (L. 2004, Ch. 738, §41[d-1]). Section 41(d-1) of the DLRA thus specifies that sections 36 and 20 of the act are to take effect on January 13, 2005, and that those sections, with the exception of the CASAT provision, are to apply to future crimes only. Accordingly, this language negates the presumption of the judicial option of discretionary retroactive application of these sections of the DLRA.[FN3]

Like the Appellate Division majority in Festo, and like [*6]those courts of coordinate jurisdiction who have thus far addressed the issue of the retroactivity of the 2004 DLRA (see People v. Denton, __NYS2d__, 2005 WL 236167 [Sup. Ct. Kings County Feb. 1, 2005]; People v. Estela, NYLJ, Feb. 3, 2005, p.18, col. 1 [Sup. Ct. NY County]), this court is acutely aware of the Legislature's goal of replacing the unduly harsh provisions of existing law with more enlightened approaches to the problems created by the distribution and use of controlled substances and marijuana in our society. The bi-partisan commitment to reducing sentences for non-violent drug offenders and to affording easier access to drug treatment is evident from the widely publicized comments on the act from the Governor and the leaders of both the Senate and Assembly, as well as from the bill's legislative history.[FN4] But this court respectfully must disagree with any notion that such intent may be invoked in derogation of the settled rules of statutory construction which it believes clearly govern here.[FN5] [*7]

Where a statute can be construed according to its plain terms, a court need not, and should not, resort to interpretation to explain it. (See NY Statutes, supra, §76 at 168). To do so under such circumstances constitutes an improper judicial usurpation of the power of the legislature. (Id.). The "surest guide" in determining legislative intent is the language of the statute itself. (Id., §51 at 94).

Here, as the language of section 41(d-1) is clear, this court may not look beyond the statutory language to determine the scope of its intended application. The plain language of the DLRA makes its sentencing scheme applicable only to crimes committed after January 13, 2005, and, in this court's view, leaves no room for any interpretation which would permit retrospective application of that portion of the new law.

Consequently, the author of the Practice Commentary to the DLRA, in addressing the retroactivity of the various parts of the DLRA, concludes that the application of the sentencing

provisions of the act are to be applied prospectively only: Penal Law §§60.04, 70.70 and 70.71 . . . take effect on January 13, 2005, and the amending statute specifies that except for Penal Law §60.04(6), they "shall apply to crimes committed on or after the effective date thereof." L. 2004, c. 738, §41(d-1).

(Donnino, Practice Commentaries, McKinney's Penal Laws of New

York, §60.04 [forthcoming 2005]).

Even if this court were to look beyond the language of section 41(d-1), however, the sign posts of legislative intent all point in the direction of prospective application of sections 36 and 20. At the outset, "[a]s a question of intention, a statute framed in future words, such as 'shall' or 'hereafter,' is construed as prospective only." (NY Statutes, supra, §51 at 91). Here, the Legislature stated sections 20 and 36 "shall take effect" on the thirtieth day after the DLRA becomes a law, and that those sections "shall apply to crimes committed on or after [*8]the effective date thereof . . . ." (L. 2004, Ch. 738, §41[d-1][emphasis added]). The Legislature's use of the word "shall" indicates an intent that the statute be prospectively applied.

Moreover, where a statute does not include any clear expression of intent that it be retroactive, a postponement of the effective date of the law is "some evidence" of a legislative preference for prospective application of the statute (Mulligan v. Murphy, 14 NY2d 223, 226 [1964]; People v. Sutton, 199 AD2d 878 [3rd Dept. 1993]; NY Statutes, supra, §51 at 92), and is a "legislative expression sufficient to overcome any presumption of retroactivity." People v. Sutton, 199 AD2d at 879). The express postponement of the effective date of sections 20 and 36 for thirty days, therefore, is some evidence of its intent that those sections be prospectively applied, and negates any presumption of retroactivity which the amelioration doctrine may place on its construction.

Additionally, examination of the disparate treatment which the Legislature gave to different sections of the DLRA further demonstrates that body's design that sections 20 and 36 be applied prospectively, with the single exception already noted. The Legislature used express language to make certain sections of the DLRA retroactively applicable. (See, e.g., the resentencing application procedure for persons previously convicted of A-I drug felonies [pertaining to "any person in the custody of [DOCS] convicted of a class A-I felony offense . . . which was committed prior to the effective date of this section"][L. 2004, Ch. 738, §23]; and the earlier opportunities for merit-time release for those presently serving state prison time under the old law ["any person convicted of a [drug] felony . . . other than a class A-I felony . . . which was committed prior to the effective date of this section"][L. 2004, Ch. 738, §30]). Its failure to employ similar language with respect to the elements of the sentencing scheme is a clear expression that the latter provisions be imposed prospectively.

In addition to these explicit expressions of retroactive design, it may be said that the Legislature implicitly provided for retroactive application of the sections of the DLRA increasing the weight requirements for A-I and A-II drug felonies. [L. 2004, Ch. 738, §§21, 22]. The retroactive application of those purely ameliorative sections is presumed under Belhog, supra, and Oliver, supra, because the Legislature was silent on the issue of whether those sections apply to crimes committed prior to their effective date. By contrast, the Legislature expressly stated its intent that the sentencing provisions of sections 36 and 20 were to apply to crimes committed on or after January 13, 2005.

Beyond these considerations, the Assembly's memorandum in support of the legislation includes references which support the prospective, rather than the retrospective, application of the sentencing provisions of the law. For example, the memorandum consists of [*9]three sections, entitled "1. Sentencing Reform," "2. Additional Sentencing Related Changes," and "3. Retroactive Sentencing Relief," respectively. The provisions of DLRA §§20 and 36 here at issue are addressed only within section 1. They are not mentioned in section 3 as being part of the act's "Retroactive Sentencing Relief." That section explains four other provisions which are clearly retroactive,[FN6] but does not discuss the sentencing structure. (See Assembly Memo).

Finally, as already noted, the Legislature has specifically included a number of ameliorative provisions in the DLRA which benefit defendants who were sentenced under the old laws.[FN7] By doing so, the Legislature has afforded defendants prosecuted under the old law some of the benefits of the new statute. Given the precision of the Legislature's drafting, therefore, there is no basis for rejecting its express language in section 41(d-1) in favor of a construct based on the court's own notion of, or preferences for, the statute's reach.

Accordingly, because the language of section 41(d-1) is plain on its face, and because there is no basis, either through the application of settled principles of statutory construction, or in the legislative history of the DLRA, for holding otherwise, this court concludes that the sentencing provisions of sections 20 and 36 of the DLRA are to be applied prospectively, to "crimes committed on or after the effective date" of those portions of the statute. (DLRA §41[d-1]). Thus, defendant Carl Singletary, who stands convicted of a drug-related offense committed prior to January 13, 2005, must be sentenced under the old law.

B.Defendant's Request For Enrollment in CASAT

Defendant also moves pursuant to PL §60.04(6) for an order directing DOCS to permit him to enroll in the CASAT program. This subsection clearly applies retroactively, as of its effective date of January 13, 2005. (See Donnino, Practice [*10]Commentaries, supra ["Because (§60.04[6]) is exempted from prospective application, to the extent that it is ameliorative, it should apply to those sentenced on or after the effective date, irrespective of the date of the commission of the crime. See People v. Behlog, supra."]).

The People concede that the court has the authority under this section to direct defendant's enrollment in the CASAT program. Nonetheless, they oppose the court's ordering of such treatment for defendant, contending that this condition was not part of the negotiated plea agreement.

Prosecutorial consent is required when a court modifies a sentence to which the parties have previously agreed as part of a plea bargain. (See People v. Farrar, 52 NY2d 302, 307 [1981][prosecutor had right to withdraw consent to plea where court reduced negotiated sentence]). Court-ordered enrollment in CASAT, however, does not change the defendant's sentence; rather, it attaches a condition to it, namely that the defendant successfully complete this treatment program while confined to the custody of DOCS as a precondition to obtaining conditional release from state prison at his earliest point of eligibility.

Indeed, this same condition of confinement was available prior to the enactment of PL §60.04(6), but DOCS was the only entity authorized to direct it. (Corr. L. §73[1]; see generally, People v. Purdy, 297 AD2d 499, 501 [1st Dept. 2002][holding that DOCS, not the sentencing court, determines place and conditions of confinement of defendant within its custody]; People v. Sass, 182 AD2d 861 [3rd Dept. 1992][same]). Under the prior law, when DOCS diverted a defendant to CASAT, there was no requirement that it first obtain the consent of the prosecutor, nor was such a direction considered a modification of the defendant's sentence.

The fact that the DLRA now authorizes the sentencing court to order a defendant's placement in the CASAT program does not change CASAT from a condition of confinement to a part of the defendant's sentence. CASAT does nothing either to reduce or enhance the terms of a defendant's agreed-upon sentence. In this case, defendant's sentence remains a negotiated term of two-to-four years' incarceration. Should the defendant fail to comply with the CASAT program requirements, he is still subject to the original sentence of incarceration imposed by the court. (See PL §60.04[6]; Corr. L.§73[5]; 7 NYCRR 1904.1). CASAT, therefore, changes neither the terms of defendant's plea nor those of his sentencing agreement. Moreover, in this case, as a part of the plea agreement, this court promised to recommend that defendant be provided drug treatment while incarcerated. Thus, further prosecutorial consent is not a precondition to its imposition. Accordingly, it is within the authority of the court, in its discretion, to direct the defendant's participation in CASAT.

IV. CONCLUSION

For all of these reasons, defendant's motion for [*11]modification of his promised sentence based on retroactive application of sections 20 and 36 of the 2004 Drug Law Reform Act (DLRA) is denied. His motion for court-ordered CASAT treatment based upon the retroactive application of PL §60.04(6) is granted, to the extent that the court will consider whether or not to direct defendant's participation in said program at the time of defendant's sentencing.[FN8]

The foregoing constitutes the decision and order of the court.

Marcy L. Kahn, J.S.C.

Dated: New York, New York

February 18, 2005 Footnotes

Footnote 1: L.2004, Ch. 738, §§1-41, et.seq.

Footnote 2: The CASAT program (Corr. L. §2[18]) involves diversion of a DOCS inmate from housing in the general prison population to placement in a dedicated drug treatment annex operated by DOCS for a period of six months followed by 18 months in a community-based inpatient facility. The new law provides that in no case shall confinement in CASAT extend beyond the defendant's conditional release date. (PL §60.04[6]).

Footnote 3: Moreover, sections 20 and 36 mirror the act as a whole, in that they contain both ameliorative provisions, e.g., by providing for reductions in the minimum sentences for many felony drug offenses, and non-ameliorative provisions, e.g. by including an increase in the minimum sentence for a second felony drug offender who has a prior violent felony conviction. Because those sections contain both ameliorative and non-ameliorative provisions, it is not entirely clear that the presumption of retroactivity extended to purely ameliorative statutes should apply to them. (See generally, People v. Parmalee, 184 AD2d 534, 535[2nd Dept. 1992][expressing doubt that analogous presumption of retroactivity for procedural laws would apply to statute containing both procedural and non-procedural elements]).

Footnote 4: See, e.g., Press Release, NYS Legislature, "Bruno and Silver Announce Agreement on Partial Rockefeller Drug Reform" (Dec. 7, 2004); NYS Assemb. Mem. In Supp of Legis., Bill No. A-11895 (undated) ("Assembly Memo"); "Governor Pataki Signs Law Reforming Rockefeller Drug Laws. . .," DOCS Today (New York State Department of Correctional Services, Albany, NY), Winter 2004, at 4.

Footnote 5: Based on the plain language of the DLRA, this court respectfully disagrees with the conclusions reached in Denton and Estela. In People v. Denton, the court held that when the Legislature provided that the sections enumerated in section 41(d-1) were to apply to crimes committed after January 13, 2005, it only intended this language to apply to those portions of the law which enhanced a defendant's punishment. (2005 WL 236167 * 6). It appears, however, that section 41(d-1), does not deal exclusively with portions of the law which increase punishment. Rather, that section applies to sections of the DLRA which contain both ameliorative and punitive components, and to at least one section, section 15, which is purely ameliorative (making a defendant who successfully completes shock incarceration to be immediately eligible for conditional release). Moreover, the Legislature gave no indication that there are any exceptions, other than the exception for PL §60.04, to its rule that the sections enumerated in section 41(d-1) only apply to crimes committed on or after January 13, 2005. In People v. Estela, the court held that it was not "specifically enjoined" from applying the DLRA retroactively, as the court had been with the statute at issue in People v. Festo, supra, reasoning that the language of the DLRA is less explicit than the language that prohibited retroactive application of the statute at issue in Festo. Festo, however, contains no requirement that a statement which indicates that a statute is to be applied prospectively be drafted in any particular manner. The language used by the Legislature in section 41(d-1) explains the application of sections 20 and 36, and makes clear that those sections only apply to crimes committed on or after January 13, 2005. In this court's view, this language is unambiguous, can be construed according to its plain terms, and therefore, enjoins courts from applying the DLRA retroactively. (See NY Statutes, supra, §76 at 168; People v. Festo, supra).

Footnote 6: Section 3 of the memorandum mentions only sections 23, 30, 37 and 38 of the act. See discussion of those provisions in note 7, infra.

Footnote 7: E.g., section 23 provides that any defendant convicted of an A-I felony drug offense under the old law can apply for re-sentencing under the new law, regardless of the date of conviction (L. 2004, Ch. 738, §23); sections 37 and 38 authorize the Division of Parole to grant defendants convicted of an offense under the old law, except for an A-I felony offense, termination of parole supervision after two years of unrevoked parole supervision, and for termination of parole supervision after three years of unrevoked supervision for defendants convicted of an A-I felony offense (L. 2004, Ch. 738, §§37, [effective Feb. 12, 2005, and lapses Sept. 30, 2005, L. 2004, Ch. 738, §41(i-1)], 38 [effective Sept. 30, 2005, L. 2004, Ch. 738, §41(j)]); and, under section 30, defendants sentenced under the old laws can earn an additional one-sixth merit time reduction of their minimum sentence. (L. 2004, Ch. 738, §30).

Footnote 8: To the extent the defendant urges that his plea should be vacated due to the illegality of its terms under the DLRA, the argument is rejected, in light of this court's decision on defendant's motion to modify his promised sentence, as explained in this opinion.