People v Armond

[*1] People v Armond 2005 NY Slip Op 50592(U) Decided on April 15, 2005 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 15, 2005
Supreme Court, Bronx County

The People of the State of New York,

against

Mario Armond, Defendant.



579-02

Richard Lee Price, J.

The Defendant came into this part for trial on an indictment charging him with three "B" felonies: Criminal sale of a controlled substance in the third degree, P.L. § 220.39(1), Criminal sale of a controlled substance in or near school grounds, P.L. § 220.44(2), and Criminal possession of a controlled substance in the third degree, P.L. § 220.16(1).

Just prior to conducting the Sandoval hearing, the parties informed the Court that the Defendant was considering a plea offer from the People, namely, that if he pleaded guilty to the top count of this indictment, and also pleaded guilty to the top count on three other indictments (the top charge on each also being a "B" felony [FN1]), the People would recommend that the Defendant receive 4 concurrent sentences of 4 to 8 years.

However, at this delicate stage, defense counsel made an oral application to have the Court declare, in advance of the Defendant finalizing negotiations on this plea offer, that if convicted, whether by plea or jury verdict, the Defendant was entitled to the ameliorative effect of the Drug Law Reform Act (D.L.R.A.)[FN2], pursuant to People v. Behlog, 74 NY2d 237 (1989). In Behlog, a unanimous Court of Appeals recognized the "general rule" that "Statutes dealing with matters other than procedure are not to be applied retroactively absent a plainly manifested legislative intent to that effect." People v. Oliver, 1 NY2d 152, 157 (1956). However, as in Oliver, the Behlog Court noted that "There is an exception, however, when the Legislature passes an ameliorative amendment that reduces the punishment for a particular crime. In such a case [*2]'the law is settled that the lesser penalty may be meted out in all cases decided after the effective date of the enactment, even though the underlying act may have been committed before that date.' The rationale for this exception is that by mitigating the punishment the Legislature is necessarily presumed absent some evidence to the contrary to have determined that the lesser penalty sufficiently serves the legitimate demands of the criminal law. Imposing the harsher penalty in such circumstances would serve no valid penological purpose." 74 NY2d at 240 (footnote omitted) (quoting Oliver).[FN3]

Thus, Defendant contended, upon conviction a determinate sentence should be meted out to him, albeit one that included a term of post-release supervision, as the new sentencing scheme mandates. Mr. Armond sought such a declaration from this Court to establish that the People must follow the new law and negotiate with the more lenient sentencing scheme in mind.

The People opposed the motion orally and subsequently in writing, arguing that because the effective date of the statute is January 13, 2005 and because the crimes set forth in each indictment were each committed prior to that date, no "retroactivity" of the sentencing scheme is permitted by what the People assert as the "explicit and clear" language of the statute.[FN4]

Just as Defendant Armond does, the People make their argument by looking to People v. Behlog, supra. However, the People focus on the Court's precatory language which, as above, explained that,

Under the "general rule" recognized by the New York Court of Appeals, statutes dealing with non-procedural matters, such as the provision at issue here, "are not to be applied retroactively absent a plainly manifested legislative intent to the effect [emphasis added]. People v. Behlog, 74 NY2d 237, 240 (1989) quoting People v. Oliver, 1 NY2d 152, 157 (1956).



People's Memorandum in Opposition, at 4.

After the initial oral argument on Defendant's application, the matter was taken under advisement and adjourned until the afternoon. Thereafter the parties were informed on the record that should the Defendant plead guilty or be found guilty at trial, the more favorable sentencing [*3]scheme contained in the new statute would be applied. In coming to this decision, this Court relied upon the teaching of the Court of Appeals, as expressed succinctly in Behlog, supra, and Oliver, supra. As stated on the record at the time, specific reliance was also placed upon two recent trial court cases, decided within a day of each other [FN5], both of which deal directly with the question presented here. The People then handed up their written memorandum in opposition to the application.

The following day, the People stated that they had withdrawn their plea offer, they were unwilling to offer the Defendant any sentence under the new scheme, because in their view that would be an "illegal" sentence, and their best and now their only offer was 6½ to 13 years incarceration. When asked how the Office of the District Attorney could square it's position with the teaching of Behlog, and the two trial court cases adverted to, the A.D.A. argued that Behlog was inapplicable because the statute was "clear" in restricting its retroactivity to only one class of drug crime, and, they asserted, the two lower cases involved A-II felony drug charges, a distinction they apparently felt was meaningful.

In People v. Estela, 2005 NY Slip Op. 50279U, 2005 NY Misc 2d. LEXIS 379,* (Sup.Ct. New York Co. 2005) (William A. Wetzel, J.), the Defendant had two pending indictments. Contrary to the People's representation, the first indictment charged two "B" felony drug crimes, P.L. §§ 220.39(1), 220.16(1) occurring on February 6, 2004, and the second indictment charged one "B" and one "C" felony drug crime, P.L. §§ 220.16(1), 220.09(1), occurring on August 4, 2004. Just as here, defense counsel indicated that defendant Estela was prepared to plead guilty, but he asked that he be sentenced pursuant to the newly-revised sentence scheme. As is also the case here, the People opposed that motion. Judge Wetzel disagreed, finding the ameliorative provisions should be applicable. "It is beyond cavil that the portion of the revised laws that reduces the sentence for a particular crime without any modification of the definition of that crime is ameliorative. It follows, therefore, that such a case comes within the Behlog exception regarding retroactive application of new statutes." Id. At *3 (emphasis in original).

In People v. Denton, 2005 NY Slip Op. 25029, *, 2005 NY Misc. LEXIS 82, ** (Sup.Ct. Kings Co. 2005) (Abraham Gerges, J.), the obverse situation was presented. On January 26, 2005, attendant upon that court taking a negotiated plea to "various narcotics related crimes,"[FN6] "[W]ith the consent of the People, the court promised each of the defendants a sentence authorized under the new statute but unauthorized under the law as it existed at the time of the commission of the criminal act." Id. at *2, 2005 NY Misc 2d. LEXIS 82, at **3. Then, one day [*4]prior to the date of sentence [FN7], the People filed a memorandum of law and moved to have the court renege on the sentence promise. Instead, the prosecutor asked the court to either sentence the defendants under the old statutory scheme or allow the defendants to withdraw their guilty pleas. Justice Gerges denied the motion; the defendants were given the ameliorative benefits of the new sentencing scheme.

The Office of the District Attorney for Bronx County has interposed the same argument as the Offices of the District Attorneys for Kings and New York Counties. This is perhaps a not uncommon coincidence, but certainly of particular note in light of the precedent already cited, as well as an even more recent decision from Niagara County. In People v. Frain, 2005 NY Slip Op. 50222U, 2005 NY Misc 2d. LEXIS 318, * (County Ct., Niagara Co. 2005) (Peter L. Broderick, J.), a defendant who pleaded guilty in July 2001 and was sentenced on August 15, 2001, moved to be re-sentenced so that his 5 to 10 year sentence for attempted third-degree sale of cocaine might be a lower, determinate term. In a thoughtful opinion, Judge Broderick denied the motion, but discussed at length the distinction between the availability of an ameliorative change in the punishment for a crime when raised in the context of a crime committed before or after the effective date but (in either case) not sentenced until after the effective date, and the quite distinct situation where the crime was committed and a conviction entered before the effective date. See also People v. Payne, 2005 NY Slip. Op. 50046U; 6 Misc 2d. 3d 1015A, 2005 NY Misc 2d. LEXIS 77, * (Sup.Ct. Queens Co. 2005) (Seymour Rotker, J.) (Defendant convicted and sentenced in 2002 is not entitled to retroactive application of the new sentencing scheme).

By contrast, soon thereafter Justice Rotker again was presented with the question of the statute's retroactivity, but upon distinctly different facts. That court found that the ameliorative provisions of the scheme were available to the defendant in People v. Murray, 2005 NY Slip. Op. 25094, *, 2005 NY Misc 2d. LEXIS 442, ** (Sup.Ct. Queens Co. 2005) (Seymour Rotker, J.), because no final adjudication had yet been entered at the time of defendant's application to plead guilty and be sentenced under the new scheme, even though he had been indicted in November 2003 for a crime committed the previous August. See also People v. Martinez, ___ Misc 3d ___ (Sup.Ct. New York Co. 2005) (John Cataldo, J.) (under Behlog, defendant convicted of A-I drug crime entitled to both reduction of level to A-II and the more lenient sentencing structure).

I find the logic of all of my colleagues in these cases to be compelling, and I, too, am convinced that the teachings of the Court of Appeals in People v. Behlog, supra, are fully applicable here. As they each explain, unlike the situation in People v. Festo, 96 AD2d 765 (1st Dept.), affirmed 60 NY2d 809 (1983), there is no specific statement in the D.L.R.A. that its new sentencing scheme may not be applied retroactively,

That is not to say that there are not other judges who have gone the other way. As a March 15, 2005 article in the New York Law Journal, entitled "Judges Apply Drug Sentences Retroactively" reported, "the issue has divided state court judges." Id., p.1c.3. But while the article goes on to assert without any more detail that "As of early last month, more judges had [*5]come down on the side of prosecutors,"[FN8] this Court has only been able to unearth three reported decisions where a trial court has reached a contrary decision. See People v. Singletary, 2005 NY Slip. Op. 50441U, 2005 NY Misc 2d. LEXIS 615, * (Sup.Ct. New York Co. 2005) (Marcy L. Kahn, J.); People v. Weaver, 2005 NY Slip. Op. 25102, *, 2005 NY Misc 2d. LEXIS 469, ** (County Ct. Ulster Co. 2005) (Frank J. LaBuda, A.C.C.J.); People v. McFarlane, ___ Misc 3d ___, N.Y.L.J. 4/15/05 P. 19 c.3-4 (Sup.Ct. New York Co. 2005) (Renee A. White, J.).

In Singletary, the defendant pleaded guilty to Attempted Criminal possession of a controlled substance in the fourth degree, P.L. § 110/220.09[1], a "D" felony. Judge Kahn refused his request to be sentenced under the D.L.R.A., believing that, under People v. Festo, supra, the language setting out effective dates for the statute "negates the presumption of the judicial option of discretionary retroactive application of these sections of the D.L.R.A." Singletary, supra, at *11. Furthermore, Justice Kahn acknowledged the contrary positions taken in Denton and Estella, but said she "must respectfully disagree" with those courts. Id. At *17.

In Weaver, Judge LaBuda also acknowledged the split in opinion on the issue but sided with Judge Kahn on the issue of sentencing, although he found that the reduction portion of the D.L.R.A., permitting defendants to now plead down to a "B" felony when initially charged with an A-I felony, did apply. Finally, in McFarlane, Judge White also cites Festo in finding the effective dates to override the ameliorative rule explained in Oliver and Behlog.

As indicated, this Court has concluded that the "modern rule" of amelioration must be given force. The enormous effort, over many years, to pass this legislation and palliate the Draconian effects of the Rockefeller Drug Laws is well documented, not only in most of the decisions cited above, but in every newspaper and legal journal throughout the state. As Judge Fuld wrote for the Court of Appeals,

A legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law. Nothing is to be gained by imposing the more severe penalty after such pronouncement; the excess in punishment can, by hypothesis, serve no purpose other than the desire for vengeance. As to mitigation of penalties, then, it is safe to assume, as the modern rule does, that it was the legislative design that the lighter penalty should be imposed in all cases that subsequently reach the courts.

People v. Oliver, supra, 1 NY2d at 160. Inasmuch as "[t]he amendatory statute unquestionably falls within the category of legislation reducing penalties for criminal activity," Id. at 161, this Court is bound to apply the D.L.R.A. to all cases that now come before it, irrespective of when the crime was committed.

Given the irreconcilable split in authority as discussed above, clearly this issue will not be settled conclusively until the appellate courts have ruled. However, because the People have said that they intend to appeal this Court's determination, perhaps that day will not be too long in [*6]coming.

This shall constitute the Decision and Order of the Court.

Dated: Bronx, New York

April 15, 2005

E N T E R

_________________________

Richard Lee Price, J.S.C.

Footnotes

Footnote 1: Ind. # 2861-03 Attempted Murder in the second degree, P.L. § 110.00/125.25; Ind. # 4111-04 Criminal sale of a controlled substance in the third degree, P.L. § 220.30; Ind. # 44960C-04 Criminal possession of a controlled substance in the third degree, P.L. § 220.16.

Footnote 2: The 2004 D.L.R.A. L.2004, Ch. 738, §§ 1 41, the most recent revision to the sentencing scheme of the Rockefeller Drug Laws, was signed by the Governor into law on December 14, 2004. The Act established a less harsh range of sentences for crimes falling under P.L. § 220.

Footnote 3: The Oliver Court explained the source of this rule: "At common law, it was generally held that the repeal or amendment of a penal statute barred any further prosecution under that statute for violations committed before the repeal, and abated all pending prosecutions which had not reached final judgment. Of the many reasons advanced to explain that rule, the most plausible and pervasive was that the repeal reflected a "legislative will" that offenses against the statute, though committed while it was still in force, should "no longer be regarded criminal, and * * * [should] not be punished under the repealed statute." (Vincenti v. United States, 272 F. 114, 115; see Anonymous [Case No. 475], Fed. Cas. No. 475, Vol. 1, pp. 1032, 1034; see, also, Note, 89 A. L. R. 1514.)." People v. Oliver, 1 NY2d at 158 (internal citations omitted).

Footnote 4: People's Memorandum in Opposition, at 2. The People quote § 41(d-1) of the New Drug Law, regarding the new sentencing provisions: ". . . on the thirtieth day after [this act] shall have become a law, and such provisions, with the exception of subdivision six of section 60.04 of the penal law, shall apply to crimes committed on or after the effective date thereof." See People's Memorandum in Opposition, at 3.

Footnote 5: People v. Estela, 2005 NY Slip Op. 50279U, 2005 NY Misc 2d. LEXIS 379, * (Sup.Ct. New York Co. 2005) (William A. Wetzel, J.) (decided January 31, 2005); People v. Denton, 2005 NY Slip Op. 25029, *, 2005 NY Misc. LEXIS 82, ** (Sup.Ct. Kings Co. 2005) (Abraham Gerges, J.) (decided February 1, 2005).

Footnote 6: There is nothing in the reported decision to indicate the classification of the felonies the defendants pleaded guilty to, but perhaps the People are privy to information which informed their assertion in court that these defendants faced A-II felonies.

Footnote 7: January 26, 2005. Sentencing was set for January 27, 2005.

Footnote 8: But see NY Defender Digest, Vo.24, No.5 (March 4, 2005), which cites to Denton, Stephen, and Frain in stating that under Behlog, "it would clearly appear that the new reduced sentences would also be available to those defendants whose narcotics offense was committed prior to January 13th, but who were or are to be sentenced thereafter."