People v Paulino

[*1] People v Paulino 2012 NY Slip Op 50555(U) Decided on March 29, 2012 Supreme Court, Queens County Kohm, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2012
Supreme Court, Queens County

The People of the State of New York, Plaintiff,

against

Juan Paulino, Defendant.



N10363/96



Appearance or Counsel:

Michael D. Horn, Esq.

John L. Russo, Esq.

Attorneys for the Defendant

31-19 Newton Ave., Ste. 500

Astoria, NY 11102

Tel. # 718 777-1277

Hon. Richard A. Brown

District Attorney - Queens County

By: Johnnette Traill, Esq.

Opposed

125-01 Queens Blvd.

Kew Gardens, NY 11415

Tel. # 718 286-5862

Robert Charles Kohm, J.

As a result of certain narcotics transactions engaged in by the defendant on February 26, 1996, the defendant was arrested and subsequently indicted, on April 12, 1996, for the crimes of Criminal Sale of a Controlled Substance in the Third Degree, Criminal Possession of a Controlled Substance in the Third Degree, Criminal Possession of Controlled Substance in the Fifth Degree, Criminal Possession of a Controlled Substance in the Seventh Degree and Criminal Facilitation in the Fourth Degree. On September 10, 1996, the defendant pled guilty in full satisfaction of the indictment to the crime of Attempted Criminal Sale of a Controlled Substance in the Third Degree, a "C" felony, and was promised a prison sentence of 3-6 years. However, on November 6, 1996, the defendant failed to appear for sentencing and a bench warrant was issued. The defendant would remain at large for nearly 15 years, until he was arrested in Kings County in July of 2011, on unrelated charges. Returned to Queens County pursuant to the warrant the defendant was, upon the recommendation of the People, sentenced by this Court, on August 19, 2011, to the original agreed upon indeterminate sentence of 3-6 years.

The defendant has now moved for an order resentencing him pursuant to CPL §440.46 and Penal Law §70.70. The defendant's application clearly runs afoul of the very law upon [*2]which he seeks relief. CPL §440.46 expressly states that "(a)ny person in the custody of the Department of Corrections and Community Supervision convicted of a Class "B" felony offense defined in article 220 of the penal law which was committed prior to January 13, 2005 . . . may apply to be re- resentenced to a determinate sentence in accordance with sections 60.04 and 70.70 of the penal law . . ."

The defendant was concededly not convicted of a "B" felony offense, having been convicted of Attempted Criminal Sale of a Controlled Substance in the Third Degree, a "C" felony offense. Hence, the defendant is ineligible for resentencing pursuant to CPL §440.46.

As an alternative theory of relief, the defendant contends that he should be resentenced in accordance with the Drug Law Reform Act (DLRA) (L 2004, c 738) which replaced the indeterminate sentencing scheme of the Rockefellar Drug Laws with a determinate system, and reduced mandatory prison sentences for nonviolent felony drug offenses. However, the crime for which the defendant was convicted occurred on February 26, 1996, well before the effective date of the DLRA 2004, which was enacted on December 17, 2004, and became effective on January 13, 2005. As such, this defendant may not be resentenced pursuant to the ameliorative sentencing provisions of that enactment (People v Smith, 54 AD3d 694; People v Utsey, 7 NY3d 398).

As explained by the Appellate Division, Second Department in People v Goode, 25 AD3d 723, "(t)he DLRA sets forth a new sentencing structure for drug offenses (see L 2004, ch 738, §§20, 36 [adding Penal Law §§60.04, 70.70, 70.71]) and provides that the new structure shall apply to crimes committed on or after the effective date of the statute's relevant sections (L 2004, ch 738, §41 [d-1]). Thus, the DLRA, while ameliorative in nature, expressly states that its sentencing provisions are to have only prospective application (see People v Nelson, 21 AD3d 861; cf. People v Behlog, 74 NY3d 237). The defendant would have this Court apply the Behlog "amelioration doctrine" to the case at bar. In sum and substance, that doctrine provides that "a statutory amendment reducing the punishment for a particular crime is generally to be applied to all cases decided after the effective date of the enactment - even though the underlying act may have been committed before that date - except when the legislature, in enacting the amendment has expressed a contrary intent" (People v Utsey, supra; see People v Behlog, 74 NY2d 237; People v Oliver, 1 NY2d 152). "However, when the Legislature manifests a specific intent that an ameliorative amendment not be retroactively applied to underlying acts committed before the amendment's effective date" (as it has done here) " then the usual presumption - that the Legislature must have intended that the harsher penalty should no longer be applied to anyone - will have been rebutted, and the legislative will that the amendment apply only prospectively must be given effect" (People v Utsey, supra, at 4).

The foregoing constitutes the Opinion and Decision of the Court.

Accordingly, the defendant's motion for resentencing is denied in its entirely.

Order signed herewith.

The Clerk shall forward copies of this Memorandum Decision and accompanying Order to the attorney for the defendant and the District Attorney.

____________________________

Robert Charles Kohm

J.S.C.