People v McFarlane

[*1] People v McFarlane 2005 NY Slip Op 50685(U) Decided on March 21, 2005 Supreme Court, New York County White, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 21, 2005
Supreme Court, New York County

The People of the State of New York

against

Devon McFarlane, Defendant.



5171/04

Renee A. White, J.

In Indictment No. 5171/04, defendant is charged with Criminal Possession of a Controlled Substance in the Third Degree (two counts). In Indictment No. 3644/04, defendant is charged with Criminal Sale of a Controlled Substance in the Third Degree (two counts).

Defendant moves for an order determining that he would be sentenced to the lesser criminal penalties set forth in The 2004 Drug Law Reform Act ("DLRA") (L. 2004, Ch. 738 §§1-41 et seq.) were he to be convicted of the crimes charged in the instant indictments.

The People submit two responses in opposition. In one response, on Ind. No. 5171/04, the People contend that the motion is premature since defendant has neither entered a guilty plea nor been convicted after trial. However, defendant is entitled to know the potential legal consequences of a conviction so that he may intelligently decide on his legal course of action. The People's other response, on Ind. No. 3644/04, addresses the merits of the issue. Defendant has submitted a reply.

Under pre-existing law, the minimum prison sentence for the crimes with which defendant is charged is 1 to 3 years; and the maximum prison sentence is 8 1/3 to 25 years. Section 36 of DLRA reduces the minimum sentence to a determinate sentence of 1 year and the maximum sentence to a determinate sentence of 9 years.

Section 41(d-1) of DLRA provides, in pertinent part: "[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 on 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 ..." (emphasis added).

The statute was enacted on December 14, 2004; and its effective date is January 13, 2005. The crimes charged in the indictments are alleged to have been committed on June 23, 2004 and June 30, 2004.

Whether a statute is to be accorded retroactive application is usually a matter of ascertaining legislative intent. Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d [*2]443 (1965). "The general rule is that nonprocedural statutes 'are not to be applied retroactively absent a plainly manifested legislative intent to that effect' (People v Oliver, 1 NY2d 152, 157)." People v Behlog, 74 NY2d 237, 240 (1989).

Here, the legislature's intent that the sentencing provisions were not to be applied retroactively to pending cases is established by the plain language of the statute; and the author of the Practice Commentary to the DLRA has so concluded. (Donnino, Practice Commentaries, McKinney's Penal Laws of New York, §60.04 [forthcoming 2005]).

That the pertinent language in the statute was intentionally employed by the legislature is shown by the Sponsor's Memorandum in Support, submitted in both the State Senate and House, which stated: "EFFECTIVE DATE: Sentencing changes would generally take effect 30 days after the bill's effective date, and with respect to prospective sentencing provisions, apply to offenses committed on or after that date."

That the legislature intended that the sentencing provisions were not to be applied retroactively to pending cases is also demonstrated by other portions of the DLRA. Pursuant to Sections 21 and 41 of the DLRA, the weights necessary to sustain convictions for A-I and A-II drug felonies were increased effective immediately. That the legislation chose to postpone the effective date of the new sentencing provisions for 30 days while giving immediate effect to the weight changes for A-I and A-II drug felonies evidences the legislature's intent that the sentencing provisions were not to be applied retroactively.

Moreover, another provision of the statute evidences that the legislature considered, but rejected, the idea of making the new sentencing provisions retroactive. Section 41 (d-1) of the DLRA provides that all of the sentencing provisions "with the exception of subdivision 6 of Section 60.04 of the penal law as added by Section 20 of this act, shall apply to crimes committed on or after [January 13, 2005]." Subdivisions 1 through 5 of Section 60.04 pertain to authorized sentences of imprisonment or probation, and specify that sentences of imprisonment must be imposed in accordance with the new determinate sentencing provisions contained in Penal Law §§ 70.70 and 70.71. Penal Law §60.04(6) permits a Court to direct the Department of Corrections to enroll a defendant in one of its Alcohol and Substance Abuse Treatment Programs; and it is not restricted in its applicability to crimes committed after the effective date of this legislation. Apparently, the legislature determined that a Court's ability to order a defendant to participate in an Alcohol and Substance Abuse Treatment Program run by the Department of Corrections should not depend on whether the defendant received an indeterminate sentence under the old drug law or a determinate sentence under the new law. Therefore, the legislature specifically exempted Penal Law §60.04(6) from the provision that the act pertained to crimes committed on or after its effective date. Since the new sentencing provisions were not so exempted, it is apparent that the legislature intended that the new sentencing provisions would apply only to crimes committed on or after the statute's effective date.

It should be noted that the DLRA contains ameliorative provisions designed to benefit defendants who are subject to the pre-existing drug sentences by bringing them into some degree of parity with defendants who receive determinate sentences under the new law. For example, Section 23 of the DLRA enables defendants who have been convicted of A-I felonies and sentenced under the old law to apply for re-sentencing under the determinate sentencing [*3]provisions of the DLRA. Pursuant to Sections 37 and 38 of the DLRA, the Division of Parole must grant an early termination of sentence and parole to defendants subject to indeterminate sentences under the old law; and Section 30 provides that such defendants are eligible to earn an additional one-sixth reduction in their minimum sentence as merit time. Section 30 thus effectively shortens the parole eligibility date for defendants subject to indeterminate sentences under the old law. Thus, the legislature specified the nature and extent of the ameliorative relief that it deemed warranted to defendants subject to sentencing under the old law.

Defendant relies principally on People v Behlog, 74 NY2d 237, 240 (1989), wherein the Court of Appeals wrote: "The general rule is that nonprocedural statutes 'are not to be applied retroactively absent a plainly manifested legislative intent to that effect' (People v Oliver, 1 NY2d 152, 157). There is an exception, however, when the Legislature passes an ameliorative amendment that reduces the punishment for a particular crime. In such a case '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' (id., at 160). 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 (id.). Imposing the harsher penalty in such circumstances would serve no valid penological purpose (citations omitted)."

In Behlog, a defendant was convicted after trial of Grand Larceny in the Third Degree predicated upon defendant's theft of property valued in excess of $250.00. Prior to the imposition of sentence, a New York State statute was enacted in 1986 (Chapter 515) which, inter alia, redefined the crime of Grand Larceny in the Third Degree to raise the requisite amount of the theft to $1,000.00 in order to constitute the crime of Grand Larceny in the Third Degree. The Court of Appeals held that the defendant's conviction for Grand Larceny in the Third Degree must be reduced to Petit Larceny.

The Behlog holding can properly be understood only by considering Section 11 of Chapter 515 of the Laws of 1986. Section 11 of Chapter 515 provided: "This act shall take effect on the first day of November next succeeding the date on which it shall have become a law." Thus, Chapter 515 was ambiguous in its applicability to cases where the crime was committed prior to its effective date where the defendant had yet to be sentenced. Given that ambiguity, the Behlog holding stands for the unremarkable proposition that the legislature is presumed to have intended to apply an ameliorative amendment that reduces the punishment for a particular crime to crimes for which a defendant has been convicted but not yet sentenced.

However, where the legislature explicitly provides that the ameliorative amendment would apply only to those crimes committed after the statute's effective date, a Court should not engage in the application of a presumption which results in a contrary result. For, as the Court of Appeals held, in People v Walker, 81 NY2d 661, 666 (1993), decided subsequent to Behlog, "Where a statute is plain on its face, we need only apply it in accordance with its meaning." Here, the legislation is plain on its face. The legislature specified that the subject provisions of [*4]the new statute would apply only to those crimes committed after the statute's effective date. See, People Sutton, 199 AD2d 878, 879 (3rd Dept. 1993).

In People v Festo, 96 AD2d 765 (1st Dept. 1983), affd 60 NY2d 809 (1983), the defendant was convicted after trial of Criminal Sale of a Controlled Substance in the First Degree, Conspiracy in the Second Degree and Criminal Use of Drug Paraphernalia in the Second Degree. The conviction for Criminal Sale of a Controlled Substance in the First Degree was predicated upon defendant's sale of more than one ounce of a narcotic drug. After defendant committed the crime of Criminal Sale of a Controlled Substance in the First Degree, but before he was convicted of it, Chapter 410 of the Laws of 1979 was enacted. Chapter 410 amended, inter alia, the definition of the crime of Criminal Sale of a Controlled Substance in the First Degree so that only a sale of two or more ounces of a narcotic drug would constitute the crime of Criminal Sale of a Controlled Substance in the First Degree. Pursuant to Chapter 410, a sale of less than two ounces of a narcotic drug would constitute the lesser crime of Criminal Sale of a Controlled Substance in the Second Degree. The evidence at trial established that defendant's crime involved more than one ounce, but less than two ounces, of cocaine. Defendant was sentenced on his conviction of Criminal Sale of a Controlled Substance in the First Degree to the pre-existing mandatory sentence of 15 years to life.

The Court of Appeals in Festo upheld the imposition of the pre-existing mandatory sentence and did not retroactively apply the newly enacted provisions of Chapter 410 to effectuate a reduction in defendant's sentence. The Court of Appeals relied upon the following language set forth in the new legislation: "{T]he provisions of this act do not apply to the ... punishment for any offense committed prior to the effective date of this act... 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 been enacted."

Although the Festo Court stated, at p. 766, that it "might well be inclined" to impose the lesser punishment set forth in the newly enacted legislation were it free to apply the doctrine set forth in People v Oliver, supra, it concluded that "we are specifically enjoined by law from imposing the lesser sentence permitted by the amended statute".

The legislation in the instant case, similar to the enactment underpinning the holding in Festo, specifies that the provision "shall apply to crimes committed on or after the effective date thereof". In light of that unambiguous language, the Court is specifically enjoined by law from imposing any lesser sentence that would be permitted for crimes committed after the effective date of the subject provision.

Indeed, a contrary ruling would penalize those defendants who promptly disposed of their cases while unduly rewarding those defendants who delayed disposition of their cases until after the effective date of this legislation.

Accordingly, the Court finds that defendant would be subject to the criminal penalties in existence at the time of the incident were he to be convicted of the crimes charged in the instant indictments; and defendant's motion is denied.

This opinion constitutes the decision and order of the Court. [*5]

Dated: March 21, 2005

New York, New York

- Renee A. White, J.