People v Romero

[*1] People v Romero 2005 NY Slip Op 50849(U) Decided on April 28, 2005 Supreme Court, New York County Soloff, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2005
Supreme Court, New York County

THE PEOPLE OF THE STATE OF NEW YORK,

against

Jose Romero, Defendant.



5970/02

Brenda Soloff, J.

Defendant's motion to vacate sentence pursuant to CPL 440.20 is denied.

Defendant was charged under Ind. No. 5970/02 with two counts of criminal sale of a controlled substance in the first degree, two counts of sale in the second degree, six counts of sale in the third degree, criminal possession of a controlled substance in the second degree and related counts for a series of heroin sales to an undercover police officer and the possession of additional heroin and paraphernalia at his arrest. He pleaded guilty to criminal sale of a controlled substance in the second degree to satisfy the indictment, and on May 13, 2003, I sentenced him, as promised, to a prison term of four and one-half years to life.

Defendant was charged in Ind. No. 3624 with criminal sale of a controlled substance in the second and third degrees arising from two additional sales of heroin to a police officer. He pleaded guilty to sale in the second degree to satisfy the indictment, and on April 2, 2004, I sentenced him, as promised, to a prison term of three years to life, to run concurrent to the previously-imposed term. Defendant now moves for re-sentencing pursuant to the 2004 Drug Law Reform Act ("DLRA), statutory amendments to the "Rockefeller" drug laws enacted December 14, 2004.

Defendant's motion must be denied. Section 23 of the DLRA expressly provides for re-sentencing only of those defendants convicted of Class A-I felonies, and mandates that "[i]f the court determines that [the defendant] does not stand convicted of such a class A-I felony offense, it shall issue an order denying the application."

In addition, the statutory denial of retroactive relief to non-Class A-I offenders is constitutional. "The general rule is that nonprocedural statutes 'are not to be applied retroactively absent a plainly manifested legislative intent to that effect.'" People v. Behlog, 74 NY2d 237, 240 (1989), quoting People v. Oliver, 21 NY2d 152, 157 (1956). The exception to that general rule, sometimes invoked in the case of "ameliorative" statutes which serve to reduce punishment, applies only "absent some evidence [of legislative intent] to the contrary." People v. Behlog, supra, 74 NY2d at 240; accord People v. Walker, 81 NY2d 661 (1993); People v. Festo, 60 NY2d 809 (1983), aff'g for the reasons stated at 96 AD2d 765 (1st Dept.); People v. Sutton, 199 AD2d 878 (3rd Dept. 1993)(all denying retroactive application of ameliorative statutes where clear legislative intent to the contrary).

In enacting the DLRA, the Legislature expressly provided that the Act's new sentencing [*2]provisions would apply only to offenses committed on or after January 13, 2005 (see Section 41[d-1]), with the exception of changes in weight requirements for Class A-I and A-II possession offenses, the authority to offer "B" felony pleas even to defendants charged with A-I felonies and defendants' eligibility for "CASAT" drug and alcohol treatment programs, which were granted immediate effect. In addition, the Legislature provided that defendants whose cases preceded the January 2005 effective date of the Act were to be afforded other relief, including the early termination of prison and parole terms (see Sections 37 and 38). Thus, there is no doubt that the Legislature fully considered the issue of retroactivity and enacted specific provisions to effect its intent. People v. Carl Singletary, __ M3d __ (S. Ct., NY Co. March 7, 2005).

Denial of retroactive application does not offend due process concerns regarding fundamental fairness. While effecting many changes to the narcotics sentencing scheme replacing indeterminate terms with determinate sentences, for example and while widely heralded as "ameliorative," the DLRA has in practice had limited impact on the sentences imposed on narcotics offenders. Not all minimum permissible sentences have been reduced, and a new category of offenders, those with prior violent felony convictions, actually face increased terms. Like defendants sentenced under the prior law, who were routinely released upon completion of the minimum sentences to complete their indeterminate terms on parole, defendants sentenced under the DLRA must complete terms of post-release supervision.[FN1] In addition, adjustments in guilty plea offers by the People have frequently tended to undermine the effect of some sentence reductions. A second non-violent offender indicted for a "B" felony, for example, was often offered the minimum on a plea to a "D" felony, a sentence of two to four years. While a plea to a "D" felony remains permissible, the People now generally offer only the minimum on a guilty plea to a "C" felony, a sentence of two years followed by a term of post-release supervision. In sum, at least the minimum sentences imposed under the DLRA often are not substantially different from prior sentences, if different at all.

Finally, no cases grant retroactive relief of ameliorative statutes after sentence. There is universal agreement that such defendants are not entitled to re-sentencing. See, e.g., People v. Walker, supra, 81 NY2d at 666-67; People v. Behlog, supra, 74 NY2d at 239, fn. 1; People v. Festo, supra, 60 NY2d 809; People v. Denton, __ M3d __, 2005 WL 236167 (S. Ct, Kings Co. 2005).

Accordingly, defendant's motion for re-sentencing is denied.

This opinion is the decision and order of the Court.

Dated: New York, New York

April 28, 2005

__________________________________

J.S.C. Footnotes

Footnote 1:1 Even Class "A" felony offenders subject to lifetime parole under the former sentencing scheme were routinely granted early discharge from parole.