People v Tomas Abreu

People v Abreu 2005 NY Slip Op 10034 [24 AD3d 274] December 22, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

The People of the State of New York, Respondent,
v
Tomas Abreu, Appellant.

—[*1]

Judgment, Supreme Court, Bronx County (John N. Byrne, J., at plea; John P. Collins, J., at sentence), rendered November 25, 2003, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.

Defendant's waiver of his right to appeal forecloses review of the severity of his lawful sentence (People v Seaberg, 74 NY2d 1, 10 [1989]). Were we to find that defendant's argument is not foreclosed, we would find that defendant is not entitled, pursuant to the amelioration doctrine of People v Behlog (74 NY2d 237 [1989]), to the benefit of the reduced penalty contained in the Drug Law Reform Act (L 2004, ch 738), because the Legislature has expressly stated that the provision applicable to defendant's situation applies only to crimes committed after its effective date (People v Nelson, 21 AD3d 861 [2005]). Moreover, and, in any event, the amelioration doctrine could not apply where, as here, defendant was sentenced before the new law's effective date (People v Walker, 81 NY2d 661, 666-667 [1993]). Concur—Buckley, P.J., Andrias, Saxe and Sullivan, JJ.