People v Martinez

[*1] People v Martinez 2005 NY Slip Op 50831(U) Decided on May 31, 2005 Supreme Court, New York County Cataldo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 31, 2005
Supreme Court, New York County

THE PEOPLE OF THE STATE OF NEW YORK,

against

EDWARD MARTINEZ, Defendant.



7324/02

John Cataldo, J.

By decision and order dated March 9, 2005, this court granted defendant's motion to be sentenced under the provisions of the 2004 Drug Law Reform Act ("DLRA"). I held that as a result of the changes in the narcotic weight requirements for A-1 and A-11 possession crimes, effective December 14, 2004, the defendant would be sentenced for an A-11 felony conviction under the DLRA, although he had been indicted for an A-1 felony.[FN1] I further held that the new determinate sentencing provisions of the DLRA were applicable to Mr. Martinez, who was not scheduled for sentencing until after January 13, 2005.[FN2]

By affirmation dated March 28, 2005, the People move for reconsideration of the court's decision upon the grounds: they did not have an adequate opportunity to respond to defendant's original moving papers; that the defendant, who bench warranted before the commencement of trial, has waived his right to have his motion considered by this court; and because they believe they have a high probability of prevailing on the merits.

The People's motion for reconsideration is granted upon the ground that they did not have a full opportunity to respond to the original moving papers. There was apparently some confusion and/or law office failure surrounding the filing of the People's responding papers to defendant's motion. Prior to the date set for the court's decision, a Memorandum of Law in opposition to the defendant's motion was filed with the court. Based upon this submission, the court rendered its decision. Shortly after the decision was rendered, however, the assigned Assistant District Attorney contacted my office and informed my court attorney that he had not yet filed his papers in opposition. On March 15, 2005, the assigned Assistant District Attorney and his supervisor came to my chambers and obtained a copy of the Memorandum of Law in opposition to the defendant's motion which had been filed with the court. The assigned Assistant District Attorney and his supervisor stated to my court attorney that they had not filed that memorandum of law for this case and did not [*2]know how it had come to be filed with the court, however, they acknowledged it appeared to be a generic brief prepared by their office which did represent their position on these legal issues.

Because the original Memorandum of Law from the office of the prosecutor was not specifically tailored to the facts of this case as the People had intended their submission to be, I find the People should be given a further opportunity to respond to the defendant's moving papers. The Assistant District Attorney in his current submissions raises additional arguments in support of his position that were not included in the previous Memorandum of Law submitted to the court. Accordingly, reconsideration is granted to provide the People a full opportunity to present their arguments in opposition.

The People alternatively seek reconsideration upon the ground that the defendant, having bench warranted prior to trial, has waived or forfeited his right to have the court determine the merits of this motion. Contrary to the People's contention, the defendant did not waive or forfeit his right to be sentenced pursuant to law. People v. Fuller, 57 NY2d 152 (1982); People v. Main, 195 AD2d 1025 (4th Dept 1993). A court's responsibility to appropriately sentence a defendant does not end because the defendant absconded prior to trial. The appellate cases cited by the People address an absconding defendant's right to appeal and thus are not on point. A defendant, tried in absentia due to his voluntary and wilful absence, retains the right to the effective assistance of counsel. People v. Aiken, 45 NY2d 394, 397-398 (1978). These defendants retained the right to the effective assistance of counsel, which I find includes the right to have defense counsel make motions relating to their sentencing.[FN3]

I - DLRA Changes in the Weight Requirements for A-1 and A-11 Possession Crimes

The People argue that this court erred in ruling it would sentence Mr. Martinez and his co-defendant, Mr. Caceres, for a conviction for an A-11 felony under the DLRA.

Initially, the People point to the fact that I accepted guilty pleas from the two other co-defendants in this case, co-defendants Jaimie Garcia and Jackson Alberto, under the old drug laws, [*3]and that I sentenced them under the old drug law's provisions as well. The People argue it would be inconsistent for me to now apply the new drug laws to Mr. Martinez and Mr. Caceres when I did not apply them to their co-defendants. This argument lacks merit.

Mr. Garcia and Mr. Alberto plead guilty to Criminal Possession of a Controlled Substance in the Second Degree, Penal Law § 220.18(1), on December 3, 2004, before the Governor signed the new drug law legislation into law on December 14, 2004. Thus, the only plea possible on December 3rd was under the old drug laws. Moreover, as a result of the fact that Mr. Garcia and Mr. Alberto's pleas were entered two weeks before Mr. Martinez and Mr. Caceres' trial convictions occurred, their cases came before me for sentencing on December 17, 2004 and January 7, 2005, before Mr. Martinez and Mr. Caceres' original sentencing date of January 21, 2005. On December 17th of 2004 and January 7th of 2005, when Mr. Garcia and Mr. Alberto were sentenced, respectively, the determinate sentencing provisions of the new drug law were not yet in effect. The new determinate sentencing structure (unlike the changes in the weight requirements for A-1 and A-11 crimes) were made effective for cases pending sentence on or after January 13, 2005. Defendants Garcia and Alberto had both been sentenced by January 13, 2005. Therefore, I applied a different set of legal standards to the pleas and sentencing of Mr. Garcia and Mr. Alberto.[FN4]

The People next contend defense counsel's failure to take exception to the court's jury charge bars application of the new law to defendant's case. I find defense counsels were not required to raise these sentencing issues during the trial, nor were they required to request a change in the charge to the jury. See, People v. Main, 195 AD2d 1025, supra. As I indicated when the Assistant District Attorney first raised the issue of the change in the weight requirements during the course of the trial, I felt it best left alone. Raising the question of the new drug laws to the trial jurors at that time would only have served to engender speculation on the jury's part as to the meaning of the new law and might have tempted them to read the newspapers or do outside research on the question.

Upon review of the DLRA after defendants' convictions, I determined that the new weight requirements were applicable at the time of the defendants' trial. However, the change in the weight element required no modification of the charge to the jury to support a conviction for Controlled Substance in the Second Degree, Penal Law § 220.18(1), under the DLRA.

The new weight requirements for A-1 and A-11 felonies were, by the express words of the statute, effective immediately upon the Governor signing the legislation into law on December 14, 2004. Thus, when the jury was charged on December 16, 2004, the defendants, indicted for possession of four or more ounces of cocaine, were in effect automatically facing an A-11 felony conviction under the DLRA. The charge to the jury correctly set forth the elements of Penal Law [*4]§ 220.18(1) as it existed in law on or after December 14, 2004 under the DLRA. The only matter that had changed was the designation of the offense, now called Criminal Possession of a Controlled Substance in the Second Degree, rather than Criminal Possession of a Controlled Substance in the First Degree. The name of the offense, as charged to the jury, had no effect on the elements of the crime, and therefore it was not error to fail to apprise the jurors of the change in the designation of the offense.

The People nevertheless argue defense counsels should have requested the court to charge the jury using the provisions of law under the DLRA, presumably asking the jury to find the defendants possessed eight or more ounces of a narcotic drug, the A-1 felony under the DLRA. However, on December 16, 2004, there was no legal basis upon which this court could have charged the trial jury with Criminal Possession of a Controlled Substance in the First Degree under the DLRA. The indictment did not charge the defendants with possession of eight ounces or more of a narcotic drug.

It is well-established that when a count is not voted by the grand jury, the court may not add it to the charges to be considered at trial, even if the evidence before the grand jury, and likewise at trial, would have supported an indictment and conviction for such an offense. People v. Perez, 83 NY2d 269 (1994); New York Const., Art. I, § 6; U.S. Const., 5th A. Likewise, an indictment may not be amended to correct the legal insufficiency of its factual allegations. CPL 200.70. The People's remedy in such a situation is to obtain a superceding indictment.

The only amendments allowed to an indictment are those which correct defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like, when the amendment does not change the theory of prosecution as reflected in the evidence presented to the grand jury. CPL 200.70; People v. Perez, 83 NY2d 269, supra (court cannot amend indictment to add new count even where it was properly voted by grand jury but was omitted from indictment due to a clerical error); People v. Brown, 221 AD2d 353 (2d Dept 1995), appeal denied 87 NY2d 919 (1996) (error to amend robbery in first degree count to delete words "displayed what appeared to be [a knife]" and insert words "used or threatened the immediate use of a dangerous instrument to wit [a knife]"); People v. Chicas, 204 AD2d 476 (2d Dept 1994); appeal denied 84 NY2d 906 (1994) (error, as an impermissible substantive change, to amend the indictment to add "that the defendant possessed the dangerous instrument with the intent to use it unlawfully against another" even though the evidence before the grand jury indicated defendant used a machete to seriously injure the complainants); People v. Struts, 281 AD2d 655 (3d Dept 2001) (indictment properly dismissed for failure to allege defendant and victim of rape in the third degree were not married, as the exception, contained in the statute, must be incorporated in the indictment); People v. Jones, 267 AD2d 89 (1st Dept 1999) (Defendant and co-defendants were indicted for Criminal Sale of Controlled Substance In or Near School Grounds, however, defendant was not indicted along with the co-defendants for Criminal Sale of a Controlled Substance in the Third Degree. Therefore, it was error to submit to the jury the sale three charge, as a lesser included offense of the school grounds charge, because the court was in effect adding a new charge against the defendant which was either not voted by the grand jurors or omitted from the indictment by oversight).

When a defendant is charged with an offense which requires possession of a specified weight or quantity of a controlled substance, the weight or quantity of the substance is always an element of the crime. In point of fact, it is the weight or quantity of the controlled substance which [*5]distinguishes the degree of the crime (and the length of the potential sentence) for the majority of offenses throughout Article 220 of the Penal Law. Criminal Possession of a Controlled Substance in the First Degree under the old drug law read: "A person is guilty of criminal possession of a controlled substance in the first degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of four ounces or more." That crime may be committed by possession of any narcotic drug but it must be of the specified weight. (See, e.g. CJI 2d [NY] Penal Law §220.21(1) under old drug law, the third element reads: "That, in the aggregate, such substance weighed four [4] ounces or more"). Therefore it follows that the weight of a narcotic drug, as set forth in the indictment, may not be amended, even if there was proof of greater weight presented before the grand jury. The weight is not a matter of form, time, place, names of persons and the like, but rather, an essential element of the crime.[FN5]

Therefore, because the indictment could not be amended to add a new offense of greater weight, this court could not have asked the trial jury to find the defendant guilty of a new crime with a greater weight requirement than set forth in the indictment.

Despite the extensive law on amending indictments, the People contend I should find that the jury must have implicitly found Mr. Martinez possessed eight or more ounces of cocaine based upon the People's evidence that more than a pound of cocaine was recovered from the subject apartment when it was searched pursuant to a search warrant. In effect, the People are asking me to make a factual determination not expressly made by the trial jury through their verdict, that the defendant possessed more than eight ounces of cocaine beyond a reasonable doubt. In other words, the People are calling for the court to step into the role of the trial jury and find possession of eight or more ounces of a narcotic drug.

For this court to raise defendant's conviction from the A-11 felony of the DLRA to the A-1 felony of the DLRA would clearly be in violation of Apprendi v. New Jersey, 530 US 466 (2000) and its progeny. See also, Ring v. Arizona, 536 US 584 (2002); Blakely v. Washington, US , 124 SCt 2531 (2004); United States v. Booker and Fanfan, US , 125 SCt 738 (2005); see also, Jones v. United States, 526 US 227 (1999). All of these recent United States Supreme Court cases stand for the proposition that any fact which increases the penalty for a crime beyond the prescribed statutory maximum (other than the existence of a prior felony conviction) must be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt. Apprendi, supra, at 490; Jones, supra, at 232. In this case, the trial jury's finding was that the defendants possessed four or more ounces of narcotics, which, on or after December 14, 2004, constituted a conviction for an A-11 felony.

The court would violate defendant's Sixth Amendment right to a trial by jury as well as his Fourteenth Amendment right to due process of law if it, rather than the trial jury, made the [*6]determination that the defendants possessed eight or more ounces of cocaine, a factual finding which would expose the defendants to a penalty exceeding the maximum they would receive if punished according to the facts reflected in the jury verdict alone. Apprendi, 530 US 466, supra, at 482-483.

As summed up by the Court in Blakey v. Washington, 124 SCt 2531, supra, at 2537: Our precedents make clear, however, that the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. See, Ring, supra, at 602, 122 S. Ct. 2428 (" 'the maximum he would receive if punished according to the facts reflected in the jury verdict alone'" (quoting Apprendi, supra, at 483, 120 S.Ct. 2348)); Harris v. United States, 536 U.S. 545, 563, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002) (plurality opinion) (same); cf. Apprendi, supra, at 488, 120 S. Ct. 2348 (facts admitted by the defendant). In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts "which the law makes essential to the punishment," Bishop, supra, §87, at 55, and the judge exceeds his proper authority.

The People argue, however, that the rational of the Court of Appeals in People v. Behlog, 74 NY2d 237 (1989), authorizes this court to make a finding of defendants' possession of a greater weight of cocaine than that found by the jury.

In Behlog, the crime of Grand Larceny in the Third Degree was amended prior to the defendant's sentencing. Under the statute as amended, in order to be guilty of the felony, the value of the property stolen must be $1000 or more. Before the amendment, the felony conviction only required proof that the stolen property had a value of $250 or more. After the amendment, a theft of less than $1000 would constitute the crime of petit larceny, a misdemeanor. The trial jury in Behlog, instructed under the old law, had convicted the defendant of felony grand larceny upon a finding that he stole property valued at $250 or more. Because the new statute, as ameliorative, applied to pending cases, it applied to the defendant's case. Therefore, the jury finding on the value of the stolen property was insufficient to support the felony conviction and it was reduced to petit larceny.

In Behlog, supra, at 242, the Court rejected the People's contention that because there had been trial evidence that the property actually had a value of at least $1000, the conviction should be reinstated. The People believe the Court of Appeals would have allowed the trial judge to sentence Mr. Behlog under the new felony's greater value element if the trial evidence had unambiguously shown the defendant had stolen property valued at more than $1000, even though he was only charged with stealing property valued at $250 or more. The People point out that the trial evidence in Behlog had included both the wholesale and retail value of the stolen items, one value being under $1000 and the other one being over $1000. Thus, the People believe it was only because the wholesale value was less than $1000 that the Court did not allow the greater conviction to stand.

In this regard, the People have misread Behlog. The Court stated that it was because the conviction had been obtained on the erroneous theory that the jury need only find the defendant stole property valued at $250 or more that the conviction could not stand. The Court was not concerned [*7]with the strength of the evidence underlying the conviction.

The Behlog Court made clear that the two theories it was discussing were the prior statutory element of property with a value in excess of $250 and the new statutory requirement that the property stolen have a value in excess of $1000. This is evident in the language in the Behlog decision which specifically states: "The case was argued, however, and submitted to the jury on the theory that they need only find the property had a value in excess of $250. We may not sustain a conviction obtained under an erroneous theory by speculating as to whether the jury would have convicted under a different one (see, People v. Roper, 259 NY 170, 176, 181 N.E. 88)." (Emphasis added). Thus, the erroneous theory the Behlog court was addressing was that the jury only needed to find the property had a value in excess of $250. The different theory, not presented to the trial jury, was that the property had a value in excess of $1000. Because the trial jury had only been told they had to find a value in excess of $250, an erroneous theory under the ameliorative amendment of the law, the conviction could not be sustained by speculating that the jury would have found the property had a value in excess of $1000 if that different theory had been presented.

In this case, the erroneous theory presented to the jury was that they need only find defendant possessed four or more ounces of cocaine. Behlog instructs that this trial court cannot sustain a conviction for what is now a greater offense by speculating that the trial jury would have found the defendant possessed eight or more ounces of cocaine if that different theory had been presented to them.

In any event, even if the People's analysis of Behlog were correct, this court could not now follow such a reading of Behlog. That interpretation would no longer withstand constitutional challenge under the United States Supreme Court's rulings in Jones, 526 US 227, supra; Apprendi, 530 US 466, supra, and their progeny. Behlog predates Jones and Apprendi by a decade. Since that time, the United States Supreme Court has repeatedly held that the trial jury, and not the court, must make all factual findings necessary to a charged offense.

Although not cited by the parties, I note that in People v. Dunn, 185 AD2d 54, 58 (1st Dept), lv denied 81 NY2d 970 (1993), the court, in applying Behlog, altered some of the charges in the indictment and remanded for a new trial after finding Rosario violations. The defendant had been convicted of grand larceny in the second degree upon a trial jury's finding that he stole property valued in excess of $1500 as a result of trial evidence alleging he stole travelers' checks valued at $5000. He was also convicted of grand larceny in the third degree, upon a jury finding he stole property valued at more than $250, for an alleged theft of $750. Applying Behlog, the Dunn court reduced the grand larceny second degree count of the indictment to grand larceny in the third degree under the new law, and reduced the grand larceny third degree count to petit larceny and remanded for a new trial. Under the newly amended law, grand larceny in the third degree required as an element that the property stolen had a value in excess of $3000. Thus, when it remanded the case, the court in Dunn was effectively amending the indictment as to that count by raising the threshold value of the theft from the $1500 under which the defendant had been indicted to the $3000 minimum under the new law. I believe this aspect of Dunn misreads Behlog and furthermore, is no longer good law in light of People v. Perez, 83 NY2d 269, supra, which was decided after Dunn. Therefore Dunn is not binding precedent and is not to be followed. Perez declared that trial courts lacked authority to amend indictments in the manner which occurred in Dunn, where the amendment changes the theory of prosecution, or does more than correct matters relating to form, time, place and [*8]names of persons.

Post-Perez, this court has not located a case in which the First Department has followed this facet of Dunn nor cited to it for this proposition. Instead, the First Department has applied the rational of Perez. See, e.g., People v. Gouyagadosh, 295 AD2d 246 (1st Dept 2002) (amendment which reduced charges in indictment did not violate Perez because the reduced charges were lesser included offenses of the original counts charged in the indictment, and thus did not prejudice the defendant); see also, People v. Jones, 267 AD2d 89, supra.

To follow Dunn, supra, would also violate the decision of the United States Supreme Court in Jones v. United States, 526 US 227, 232, supra, which requires that all elements of a crime must be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt. In Jones, increasing of the sentencing range, premised upon a court finding that serious physical injury had been suffered by a victim, was deemed an element of the crime and not a sentencing factor. Thus, the failure to plead serious physical injury in the indictment and to require a jury finding of serious physical injury as an element of the crime, violated the defendant's Due Process and Sixth Amendment's rights to notice of the charges against him and jury trial guarantees. Although the Jones opinion indicates there had been trial testimony as to the victim's serious physical injury, this did not allow the court, in place of the jury, to make the finding of fact as to an element of the crime. Lastly, Dunn did not make a finding that the defendant stole property with a value of more than $3000, but remanded the matter for a new trial where the finding of value would have to be determined by the trial jury. Thus, the function of the jury was not usurped by the court. Further, Dunn did not involve a court imposing a new and greater sentencing range upon a defendant by making a finding of fact not made by the trial jury.[FN6]

In sum, to the extent that the People argue the defendant was actually convicted of the A-1 felony under the DLRA, and not the A-11 felony under the DLRA, this court cannot adopt such an interpretation of the conviction. As previously noted, the new A-1 crime requires indictment and prosecution for possession of eight or more ounces of a narcotic drug, an element neither charged in this indictment nor found by the jury beyond a reasonable doubt. Moreover, such a ruling would result in the denial to defendant of notice of the charge against him and denial of a full opportunity to defend against all the elements of the charged crime. Simply because the new crime and the old crime are both entitled Criminal Possession of a Controlled Substance in the First Degree does not [*9]make them the same in law when an essential element of the crime has been changed.

Lastly, the People reason it would be unjust for these defendants to receive the benefits of the new drug law. Here, the People argue I should simply not apply the DLRA to this case, despite the fact that the DLRA states the change is effective immediately as of December 14, 2004. The People argue that based on the quantity of narcotics recovered in the apartment, they could have indicted Mr. Martinez and Mr. Caceres for the A-1 felony under the DLRA, for possession of eight or more ounces of cocaine. Therefore, the People reason the purpose underlying the ameliorative changes was not intended to benefit these defendants. The prosecutor concludes that it is only because of the fortuitous timing of the defendants' trial that this court is applying the benefits of the new drug law to their case.

It is true that the defendants received the benefit of the new law because the changes in the weight requirements went into effect while they were on trial. According to the explicit terms of the DLRA, the changes in the weight requirements were immediately applicable to all cases pending on December 14, 2004. Each and every time a law is changed or amended, defendants are benefitted or not benefitted depending on the timing of the commission of their offense as well as the timing of their trials and sentencing proceedings. As noted in People v. Oliver, 1 NY2d 152, 163 (1956), anytime the Legislature amends an existing law, a certain measure of inequality is bound to ensue. However, as noted in People v. Roper, 259 NY 170, 180 (1932): "[i]n the absence of a clause excluding from its provisions offenses previously committed, the law as amended applies in all trials held thereafter, even for offenses previously committed."

The People believe this jury would have convicted the defendants of possession of eight or more ounces of cocaine if such a crime had been charged to them. Therefore, they would have this court look to the underlying facts presented at trial and make its own evaluation as to the strength of the People's case as to the uncharged crime, and find these defendants non-deserving of the application of the new law. I do not believe it is my function to review the facts presented after a trial to decide if each individual defendant now covered by the ameliorative change in law is truly deserving of its benefits. This is not to say that there are not conceivable situations for denying a defendant the benefits of the new law. However, after a jury verdict supporting only the reduced crime, I will not make findings of fact, not made by the trial jury, in order to deny the defendants the coverage of the amended law.

Accordingly, upon reconsideration, this court adheres to its original ruling. I will sentence the defendants for A-11 felony convictions.

II - Applying the Determinate Sentencing Provisions of the DLRA to the Defendants

The People argue this court erred in ruling it would apply the new determinate sentencing structure to Mr. Martinez's conviction for an A-11 felony. Upon review of the People's further submission, I adhere to my prior analysis and determination.

I note that the People once again place strong reliance on the language in the DLRA, at Section 41(d-1) setting forth the effective date, which states: "This act shall take effect immediately, provided that: (d-1) the 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 the thirtieth day after it shall become a law, and such provisions, with the exception of subdivision 6 of 60.04 of the penal law as added by section twenty of this act, shall apply to [*10]crimes committed on or after the effective date thereof."

The People argue the words "shall apply to crimes committed on or after the effective date thereof" show a "clear and unambiguous" legislative intent to negate the rule of Behlog. (See, People's Memorandum of Law, p. 18). They contend these words have no other purpose. (People's Memorandum of Law, p. 22). It is this language which the People argue prevents the court from applying these ameliorative statutory amendments to all cases pending trial and sentencing on the effective date of the new legislation.

Contrary to the People's assertion, the words "shall apply to crimes committed on or after the effective date thereof" fail to demonstrate a legislative intent to override the rule that ameliorative changes in a new law apply to pending cases. A review of prior legislation demonstrates these words customarily have quite a different meaning than the one the People seek to attribute to them. These exact words, or words to very similar effect, have been used repeatedly by our State Legislature for the sole purpose of protecting defendants from the ex post facto application of legislation creating new crimes or increasing, rather than decreasing, penalties. The use of these words demonstrates a legislative intent to avoid constitutional violations which would result if greater penalties were imposed on past offenses than existed at the time the crimes were committed.

For example, when the crimes relating to an assault against a child were amended to avoid the time-period restrictions of People v. Keindl, 68 NY2d 410 (1986), the new crimes for a course of sexual conduct against a child were made effective as follows: "This act shall take effect on the first day of August next succeeding the date on which it shall have become a law and shall apply only to offenses occurring on or after such date". (L 1996, c. 122, § 7). This law had no ameliorative provisions. The purpose of the law was to make it easier to prosecute those who commit sex crimes against children less than 11 years old due to the difficulty children have in specifying the dates crimes were committed against them. (See, Governor's Memorandum in Support, at L. 1996, c. 122, p. 1863- 1864). The only purpose for language as to the effective date applying to offenses occurring on or after such date was to prevent ex post facto application.

Likewise, Criminal Use of a Firearm in the First Degree, Penal Law § 265.09 was amended in 1996 to require an additional five year consecutive prison sentence for a criminal who uses a loaded weapon in the commission of the enumerated Class B violent felony offenses. (See, L. 1996, c. 650, § 2). The new law undisputably was in no way ameliorative. It stated: "This act shall take effect on the first day of November next succeeding the date on which it shall have become a law and shall apply only to offenses committed on or after such effective date."

When a new crime was created for Unlawful Disposition of Assets Subject to Forfeiture, Penal Law § 215.80, the act provided that it "...shall take effect immediately and shall apply to crimes committed on and after such effective date." (L. 1984, c. 669, § 5). This act had no mitigating provisions.

When the insanity defense was amended to remove the burden of proof from the People and thus require the defendant to establish his insanity as an affirmative defense, the amended legislation read: "This act shall take effect on the first day of November next succeeding the date on which it shall have become a law, but the provisions of this act shall not apply to any criminal action or proceeding relating to an offense committed prior to the effective date hereof." (L. 1984, c. 668, §9).

When the death penalty was revived in 1995, the law stated: "This act shall take effect on the [*11]first day of September next succeeding the date on which it shall have become a law and shall apply only to offenses committed on or after such date; offenses committed prior to such date shall be governed by the provisions of the law in effect at the time the offense was committed; provided further, however, that sections twenty-nine, thirty-five and thirty-six of this act shall take effect April 1, 1995." (L. 1995, c. 1, § 38). Imposition of death, the most extreme of penalties, can convey no legislative intent for the words "shall only apply to offenses committed on or after such date" other than avoidance of ex post facto violations.

When the drug laws were amended in 1995, specifically to negate the ruling in People v. Ryan, 82 NY2d 497 (1993), that a defendant's knowledge of the weight of the controlled substance was an element of the offense, the amended statute provided: "This act shall take effect immediately and shall apply only to offenses committed on or after such date; offenses committed prior to such date shall be governed by the provisions of law in effect at the time the offense was committed." (L. 1995, c. 75, § 20). Once again, the only possible purpose of the language "shall apply only to committed on or after such date" was to avoid ex post facto problems. No defendant could be benefitted by application of the amendment to a pending matter.

Thus, the inclusion of the words "shall apply to crimes committed on or after the effective date thereof" in the DLRA fails to indicate any position was taken by the Legislature on the question of the application of the ameliorative provisions of the DLRA to pending cases. To conclude otherwise, is merely to speculate to a possible legislative intent, in the absence of any actual evidence that this issue was addressed by the Legislature. Here, where these words have a long established alternative meaning, to protect against ex post facto violations, it would be conjecture on this court's part to attribute an alternative meaning to them.

Because the DLRA, although clearly ameliorative (as evidenced by the long legislative debate over the draconian nature of the Rockefeller drug laws and the need to reduce the penalties it imposed), also contains provisions which increase penalties for offenders with prior violent felony convictions, the words of the effective date that it "shall apply to crimes committed on or after the effective date thereof" should be interpreted to have their customary meaning: that the provisions of the new law which enhance penalties may not be applied to pending cases, thereby avoiding ex post facto violations.

I note that the current legislation is similar to the legislation underlying People v. Behlog, 74 NY2d 237, supra, in that the statutory amendment contains both ameliorative provisions as well as other provisions which increase penalties. In Behlog, in addition to its ameliorative provisions, the new law increased penalties for multiple theft and white collar offenses. (See, Memorandum of State Executive Department, L. 1986, Ch. 515, pp. 2960-2963). Despite the dual purpose of the Behlog legislation, the Court held the provisions which were ameliorative applied to pending cases. Thus, the fact that the DLRA is not exclusively ameliorative does not negate application of the Behlog principle to its ameliorative provisions.[FN7] [*12]

The Assembly's Memorandum in Support, cited by the People, likewise fails to indicate an express intent to deny the mitigated penalties to pending cases. The Assembly Memorandum in Support states: "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." A distinction is made in this section between sentencing changes which go into effect 30 days after the effective date, as opposed to other sentencing changes, deemed prospective. The Memorandum in Support discusses how sentences for drug offenders with prior violent felony convictions could increase modestly under the new law. This provision provides an explanation for the second clause. Thus, what is prospective in the new law are the ex post facto provisions increasing penalties for violent predicate offenders. Nowhere in the five page Assembly Memorandum is the applicability of the new sentencing law to pending cases discussed. Thus, to imply that the second clause is meant to negate Behlog, rather than to protect against ex post facto violations, is in my view speculative and lacking the legislative expression of intent required by Behlog. Instead, I find application of the reduced penalties of the new law to pending cases comes within the first clause of the effective date provision: that sentencing changes would generally take effect 30 days after the bill's effective date.

Had the Legislature intended to negate the Behlog principle in the DLRA, they would have included, at a minimum, the express language they had used to deny application of the reduced penalties to pending matters in the legislation underlying People v. Festo, 96 AD2d 765 (1st Dept), aff'd 60 NY2d 809 (1983).

In People v. Festo, 96 AD2d 765, supra, the language setting forth the effective date of the drug law revisions repeatedly and specifically stated that the new law would not apply to the punishment for pending cases and that all pending cases would be punished under the provisions existing under the old law.[FN8]

Being charged with the knowledge that its own prior amendment of these very same drug laws had been the subject of litigation, only resolved upon appellate review in Festo, the Legislature would be expected to, at the very least, have included that same language upheld in Festo if it intended to negate application of its ameliorative provisions to pending cases. Behlog, decided six years after Festo, only reaffirmed the need for such language in a statute if the Legislature wished to override the rule that ameliorative changes are applied to pending cases.

The Festo court made clear it was only denying application of the ameliorative sentencing [*13]provisions to the defendant's case because it was "specifically enjoined" from doing so by the explicit language of the statute. Id. at 766. The Festo court quoted, with the following emphasis supplied by the court itself, the language of the statute which stated: "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." Id. This explicit statutory language on the question of how to sentence pending cases, was held to indicate the Legislature had considered the issue and had decided not to apply the beneficial changes in the sentencing structure under the new law to pending cases.[FN9] No such legislative intent is contained in the DLRA.

The People concede that the DLRA does not explicitly state that individuals whose crimes were committed prior to January 13, 2005 should be sentenced under the Old Law. (People's March 24, 2005 Memorandum of Law, p. 21, ¶2). Therefore, in the absence of an express instruction indicating a legislative intent otherwise, the principle of Behlog should be applied.

The People, in their submissions, continually conflate the case law regarding the general rule of retroactivity for non-ameliorative statutes with the Behlog rule for ameliorative amendments. Further, the line is blurred between case law discussing full retroactivity with cases under the Behlog rule which only apply to non-sentenced defendants. Full retroactivity would have applied the new determinate sentencing structure to all defendants currently incarcerated for drug convictions. Although full retroactivity has been debated in the Legislature over the years, the DLRA only provides for resentencing of prisoners serving time for A-1 felony convictions. As noted by the People, some additional relief was provided in the DLRA to sentenced prisoners by providing for early termination of parole and/or by earning an additional one-sixth reduction in the minimum sentence through merit time. However, the fact that some benefits have been given to those already sentenced does not answer the separate and distinct question of whether the reduction in sentencing under the determinate sentencing structure of the new law is to be applied to those who have not yet been sentenced at the time of the effective date of the new law. These are two separate issues involving two separate classes of defendants: those already serving prison time on the effective date of the new law, and those who are not yet sentenced. Contrary to the People's analysis, the fact that the Legislature has chosen to afford some benefits to sentenced prisoners does not demonstrate a Legislative intent to limit the class of defendants whose cases are still pending trial and/or sentence on the effective date to the new remedial provisions for sentenced prisoners.

Accordingly, for the reasons stated herein as well as in my original decision and order, dated March 9, 2005, and incorporated herein by reference, upon reconsideration, I adhere to my original determination granting defendant's motion. Defendant and co-defendant Caceres will be sentenced for an A-11 felony conviction under the DLRA in accordance with its new determinate sentencing provisions.

This constitutes the decision an order of the court.

DATED:May 31 , 2005

New York, New York /s/ JOHN CATALDO

Acting Supreme Court Justice Footnotes

Footnote 1: The DLRA raised the weight requirement for possession of a narcotic drug for an A-1 felony from an aggregate weight of four (4) or more ounces to eight (8) or more ounces; and raised the weight requirement for an A-11 felony from two (2) or more ounces to four (4) or more ounces.

Footnote 2: This court's March 9, 2005 decision also applied to co-defendant Caceres who joined in Mr. Martinez's motion.

Footnote 3: Although not raised by the People, it bears noting that this case was not in anyway delayed in coming to trial, or in its sentencing, by the flight of the defendant or co-defendant Caceras. After the bench warrants were issued, the case continued in its regular course along with that of the two remaining defendants, Jaimie Garcia and Jackson Alberto. On December 3, 2004, when the case was sent to my part for trial, defendants Garcia and Alberto plead guilty. Trial commenced immediately thereafter as to Mr. Martinez and Mr. Caceres. Upon defendants' convictions on December 17, 2004, sentencing was scheduled in the normal course for January 21, 2005, allowing time for the preparation of pre-sentence reports by the Department of Probation. Thus, the timing of the trial and sentencing were unaffected by the defendants' flight. Accordingly, I see no reason to deny the benefit of the new law to these defendants because of their flight. Cf., People v. Allen, 309 AD2d 624 (1st Dept), lv denied 1 NY3d 567 (2003) (Defendant absconded in 1982 after pleading guilty; four years later, in 1986, an ameliorative amendment was passed by the legislature, applicable to the crime of defendant's conviction. But for his flight, the defendant would have been sentenced long before the new law came into effect; therefore it was proper to apply the stricter penalty to the defendant).

Footnote 4: To the extent the People are positing that on December 17, 2004 and January 7, 2005 this court, under the rational of its March 9, 2005 decision herein, should not have sentenced defendants Garcia and Alberto upon their pleas to A-11 felonies because their plea admissions on December 3rd of 2004, presumably to possession of two ounces of more of a narcotic drug, would no longer be sufficient to satisfy the elements of that crime after December 14, 2004, this is a separate legal argument from the one currently before the court which would require a post-conviction motion by defendants Garcia and Alberto and a review of their plea allocution minutes. This court will not issue an advisory opinion on a question of law not currently before it.

Footnote 5: Cf., People v. Waxter, 268 AD2d 899 (3d Dept 2000), wherein the court distinguished the crime of criminal sale of a controlled substance in the third degree from other drug offenses, noting that the quantity sold was not an element of that crime. Because Penal Law §220.39(1) only requires that a defendant knowingly and unlawfully sell a narcotic drug, there is no weight element. Therefore, the court did not err in deleting the indictment's superfluous reference to the weight of the drug sold, in the absence of a showing of prejudice to the defendant.

Footnote 6: The People cite to People v. King, 256 AD2d 14 (1st Dept 1998), lv denied, 93 NY2d 973 (1999), for the apparent proposition that it would be harmless error for this court to sentence the defendant for the A-1 felony because the trial verdict necessarily implies the jury found defendants possessed over eight ounces of cocaine. In King, the defendant argued the court had removed from the jury's consideration the element of whether the substance possessed was a controlled substance. King held this argument was not preserved for appellate review, but, in any event, found the jury had been properly charged as to that element. In further dicta, King indicated that even if the charge had been erroneous, the error would have been harmless in light of the overwhelming evidence that the substance was heroin. This dicta of King does not address the issue in this case where the People ask this court to infer a jury finding of an uncharged element of a crime not placed before them. Rather King addressed an element of the charged crime for which that defendant had been indicted and tried.

Footnote 7: People v. Parmalee, 184 AD2d 534 (1992), does not call for a contrary result. In Parmalee, the defendant sought application of the amendment to CPL 210.20(1-a) to his case prior to its effective date. Moreover, the First Department did not indicate that it found the amendment ameliorative, but rather stated it was both procedural and non-procedural. Parmalee does not stand for the principle that an amendment that is part ameliorative and part non-ameliorative loses the benefits of Behlog. To read Parmalee in such a way would be antithetical to the facts underlying Behlog itself. Moreover, as I noted in my March 9, 2005 decision, the legislation involved in Behlog delayed the amendment's effective date, but such delay did not indicate an intent to deny application of an ameliorative amendment to pending cases.

Footnote 8: The act states: "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 been enacted." (L. 1979, c. 410, § 29).

Footnote 9: I note Festo's secondary justification for failing to apply the mitigating sentencing structure, that the new law not only changed the sentencing structure but also changed the definition of the crime, was overruled by Behlog, supra, at 242, which applied the mitigation of punishment in exactly such a situation.