People v Griffin

[*1] People v Griffin 2005 NY Slip Op 51119(U) Decided on May 13, 2005 Supreme Court, New York County Obus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2005
Supreme Court, New York County

THE PEOPLE OF THE STATE OF NEW YORK

against

Jesse Griffin, Defendant.



1892/03

Michael J. Obus, J.

On October 19, 2004, defendant Jesse Griffin entered a plea of guilty to the class B felony of criminal sale of a controlled substance in the third degree, Penal Law § 220.39(1), in satisfaction of the instant indictment. At that time he also admitted that he had a predicate felony conviction for burglary in the first degree, Penal Law § 140.30. Sentencing was adjourned at the defendant's request on several occasions until February 4, 2004, when the court imposed the promised indeterminate term of imprisonment of four and one half to nine years, the minimum permitted under the law in effect at the time of the underlying incident. See Penal Law § 70.06 (3)(b), (4)(b).

The defendant now moves, pro se, to set aside his sentence pursuant to Criminal Procedure Law § 440.20, citing People v Behlog, 74 NY2d 237 (1989), and claiming that the "Rockefeller Reform Act" retroactively changed the applicable sentencing law.

The Drug Law Reform Act, passed by the New York State Legislature as Chapter 738 of the Laws of 2004 and signed into law on December 14, 2004, does provide that a person previously convicted of a class A-I narcotics felony may apply to the court for re-sentencing pursuant to newly enacted Penal Law § 70.41. However, while the Reform Act allows for other relief for drug defendants convicted of lesser charges, the Legislature specifically limited the re-sentencing provision exclusively to class A-I offenders. [A]ny person... convicted of a class A-I felony offense defined in article 220 of the penal law which was committed prior to the effective date of this section, and sentenced thereon to an indeterminate term of imprisonment with a minimum period not less than fifteen years... may, upon notice to the appropriate district attorney, apply to be resentenced... If the court determines that such person does not stand convicted of such a class A-I felony offense, it shall issue an order denying the application.

Laws of 2004, ch. 738, § 23 (emphasis added). [*2]

The defendant seems to recognize that the re-sentencing provision does not apply to a person who has been convicted only of a class B felony. He cites People v Behlog, 74 NY2d 237 (1989), however, for the proposition that other statutory changes apply "retroactively" to him.

It is true that, as the Court of Appeals held in People v Oliver, 1 NY2d 152, 157 (1956), where there has been an ameliorative change in the law which reduces the punishment for a particular crime, absent some express legislative statement to the contrary, it is presumed that the more lenient punishment standard at the time of sentencing should apply. Thus, in Behlog, 74 NY2d at 239, where the statute was silent on the matter, an ameliorative change to the definition of grand larceny was held to apply to a defendant convicted under the prior law and awaiting sentence. On the other hand, in People v Festo, 60 NY2d 809 (1983), affg on dec below, 96 AD2d 765 (1st Dept.), legislative direction that the provisions in question "do not apply to or govern ... the punishment for any offense committed prior to the effective date of this act" was held to preclude "retroactive" application. In the instant case, the relevant statutory changes may not be applied to the defendant, both because they are not ameliorative and because the Legislature has specifically provided that they are to be applied prospectively.

To begin, there simply has not been an ameliorative change in the applicable sentencing statute for a person in the defendant's situation. Given the defendant's prior conviction for the violent felony of burglary in the first degree, see Penal Law § 70.02(1)!a), the minimum sentence he could receive under the new law would be a determinate term of at least six years, to be followed by a period of post release supervision. See Penal Law § 70.71(4)(b)(i). Thus, he is eligible for earlier release under his current indeterminate term and is subject to a comparable overall period of supervision. Indeed, it is probably for this reason that, while the defendant happened to be sentenced after the Drug Reform Act was passed, he did not seek its application at the time.

Moreover, apart from the fact that this defendant has now been sentenced and that ameliorative changes do not generally apply in such circumstances, see People v Oliver, 1 NY2d at 163; People v Walker, 81 NY2d 661, 667 (1993), the Legislature has specifically provided that the revised sentencing scheme applies only to crimes committed after its enactment. In particular, the Reform Act states that the new sentencing provisions for drug offenders "shall take effect on the thirtieth day after [the Act] shall have become law, and such provisions, ... shall apply to crimes committed on or after the effective date hereof...." Laws of 2004, ch. 738, § 41(d-1) (emphasis added). Accordingly, as the Reform Act was signed into law on December 14, 2004, these provisions apply to crimes committed after January 13, 2005. See People v Singletary, 7 M3d 1004(A), 2005 WL 756587 (NY Sup.); but see contra People v Armond, 7 M3d 1014(A), 2005 WL 926996 (NY Sup.). In that defendant Griffin's crime was committed on November 15, 2002, long before passage of the Reform Act, the plain language of that statute reveals that its new [*3]sentencing provisions are not applicable to him.

Accordingly, for all of the above-stated reasons, the instant motion must be denied.

This opinion shall constitute the decision and order of the court.

Enter:

Dated:

__________________________

JSC