People v Watts

[*1] People v Watts 2005 NY Slip Op 51923(U) [10 Misc 3d 1052(A)] Decided on November 21, 2005 Supreme Court, Kings County DiMango, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2005
Supreme Court, Kings County

People of the State of New York,

against

Herbert Watts, Defendant.



10461/2000

Patricia DiMango, J.

The defendant, Herbert Watts, stands convicted following a jury trial (Kriendler, J.S.C.) of, inter alia, Criminal Possession of a Controlled Substance in the First Degree, under former Penal Law § 220.21(1), a Class A-I felony, in that he knowingly and unlawfully possessed one or more preparations, compounds, mixtures or substances containing a narcotic drug, namely, cocaine, and said preparations, compounds, mixtures or substances were of an aggregate weight of four[FN1] ounces or more. Specifically, the defendant was in possession of over five ounces of crack-cocaine.

On January 3, 2002, the defendant was sentenced thereon to an indeterminate period of imprisonment of 15 years to Life[FN2].

The defendant, who is currently serving this previously-imposed sentence, now moves this court by motion on notice for an order vacating his sentence; and upon such vacatur, to be re-sentenced to a determinate period of imprisonment pursuant to Section 23 of Chapter 738 of the Laws of 2004, now better known as the "Drug Law Reform Act".

Mr. Watts additionally requests this court to reduce his A-I felony conviction to an A-II[FN3] felony conviction, and upon such modification, to re-sentence him as a Predicate Violent Felony Offender[FN4] to a determinate sentence of eight years' incarceration, with five years' Post Release Supervision.

The Prosecution, both in its opposition papers and at oral argument, agrees that defendant [*2]Watts is eligible for vacatur and re-sentencing on his conviction of Criminal Possession of a Controlled Substance in the First Degree, but opposes his motion for a downward modification based on the weight of the drug. The prosecution further recognizes that, were Mr. Watts tried and convicted today pursuant to the amended Rockefeller Drug laws, his possession would fall below the eight-ounce minimum necessary for an A-I felony conviction, and would meet only the statutory minimum to support an A-II felony conviction. However, the People urge this court not to apply the statute retroactively.

Discussion

By way of background, the Drug Law Reform Act ("DLRA") amends the Correction Law, Criminal Procedure Law, Penal Law, and Executive Law in relation to controlled substance convictions and sentences, thereby ameliorating the impact of the severity of the 'Rockefeller Drug Laws'. The Drug Law Reform Act's sentencing amendments apply to incarcerated persons convicted of class A-I felonies as defined in Article 220 of the Penal Law and sentenced thereon to an indeterminate period of imprisonment with a minimum of not less than 15 years' imprisonment. These reforms[FN5] permit the court, upon consideration of any facts and circumstances relevant to the imposition of a new sentence as well as the defendant's institutional record of confinement, to re-sentence a qualifying defendant to a "fair and just determinate sentence."

Inasmuch as defendant Watts, who is currently incarcerated on an A-I felony drug conviction and serving a 15-year to life sentence, has demonstrated exemplary prison behavior and utilized his time in prison constructively, all parties agree that he should obtain the ameliorative benefit of the new legislation and that the imposition of a determinate sentence would be 'fair and just' and consistent with the intended purpose of these amendments.

However, the second prong of the defendant's application requires some discussion regarding the distinction between amelioration and retroactivity.

In addition to amending the sentencing structure and reducing sentences imposed upon offenses under articles 220 and 221 of the Penal Law, the DLRA also redefines Penal Law § 220.21(1), Criminal Possession of a Controlled Substance in the First Degree, by increasing the weight requirement from four ounces to eight or more ounces of a narcotic drug, and Penal Law § 220.18(1), Criminal Possession of a Controlled Substance in the Second Degree, by increasing the weight from two ounces to four ounces or more for conviction thereunder.

Defendant is correct in his assertion that if he were tried today based on evidence that he knowingly and unlawfully possessed approximately five ounces of cocaine he would only be guilty of Criminal Possession of a Controlled Substance in the Second Degree, a class A-II felony. He opines that he is entitled to the full ameliorative impact of this legislation and urges this court to retroactively apply this portion of the ameliorative legislation to his case and to re-classify and re-sentence him as an A-II felony drug offender. He alleges that the court's authority for this can be found in the statute itself, prior Court of Appeals decisions, and constitutional principles of fairness. [*3]

Before a court may disturb a commenced sentence of incarceration, there must exist specific authorization by law or some underlying error or mistake (see, CPL 430.10). The defendant concedes that there is no illegality upon which to challenge the underlying conviction, and contrary to the defendant's claim, this court finds no authority in the Drug Law Reform Act for such re-sentencing. In fact, Section 23 expressly prohibits a court from re-examining or disturbing the underlying conviction.

Mr. Watts' next contention, that the Court of Appeals' decisions in People v Behlog (74 NY2d 237 [1989]) and People v Walker (81 NY2d 661 [1993]), which address amelioration and retroactivity, entitle him to such reduction (to an A-II felony) is further without merit.

No one disputes that in certain circumstances, pursuant to the doctrine of amelioration, such amendment could properly apply retroactively. However, merely because a statue has an ameliorative impact does not ipso facto result in its retroactive application. The doctrine of amelioration and the rules of retroactivity are not one and the same.

The increase in the narcotic preparation weight requirements for Criminal Possession of a Controlled Substance in the First and Second Degrees is clearly an ameliorative change in the statute. However, our Court of Appeals has held that amelioration does not apply to final criminal judgments (namely, where there has been a conviction and sentence); rather, a defendant is only entitled to the benefit of such an ameliorative change where, notwithstanding his/her conviction under the old statute, he/she is yet to be sentenced thereon (see, People v Behlog, supra ; see also, People v Walker, supra ). In all other cases, the general rule regarding retroactivity governs. It is, thus, the general rule that "[s]tatutes dealing with matters other than procedure are not to be applied retroactively absent a plainly manifested legislative intent[FN6] to that effect [citations omitted]" (People v Oliver, 1 NY2d 152, 157-158 [1956]).

The defendant does not deny that at the time of this motion he was in a final judgment posture. However, he urges this court to find that by virtue of the court's agreement to vacate his earlier sentence and re-sentence him pursuant to the new, less stringent determinate sentencing structure, he now is no longer subject to a final judgment.

Meanwhile, the prosecution opines that this issue, having recently been resolved by the Appellate Division, First Department in the case of People v Quinones (___ AD3d ___, 801 NYS2d 595 [2005]), is now settled and binding on this court. The defendant in Quinones was in the same situation as Mr. Watts, namely convicted of first-degree drug possession under the former statute and seeking reduction of his conviction to second-degree possession and re-sentencing thereon. This position was rejected by the First Department in Quinones, which court found that the defendant was not entitled to such a second re-sentencing, in addition to the re-sentencing afforded him under Section 23 of the DLRA.

The defendant, however, contrarily contends that until the Second Department speaks on this issue, this court may hold contrary to the First Department precedent. The defendant is incorrect. In that Quinones emanates from the Appellate Division, First Department, and there is no case law from the Second Department addressing this issue and the Court of Appeals has yet to speak on the [*4]matter, this nisi prius court is bound by the holding in Quinones (see, Mountain View Coach Lines v Storms, 102 AD2d 663, 664-665 [2nd Dept., 1984]).

In light of all of the foregoing, this court concludes that it is without authority to impose any sentence on the defendant other than one applicable to a conviction for an A-I drug felony, as provided by Section 23 of the DLRA. For a class A-I felony drug offender with a predicate violent felony,[FN7] the new determinate sentencing range is a minimum term of 15 years' and a maximum of 30 years' imprisonment (Penal Law § 70.71[4]).

Both sides are in agreement that the defendant should be re-sentenced to the minimum possible sentence. Given the defendant's exemplary comportment in prison thus far, this court concurs in the People's recommendation that the defendant be re-sentenced to a determinate term of 15 years' imprisonment, together with five years' Post Release Supervision.

Consistent with People v Quinones, supra , and People v Nelson, supra , this court finds the defendant's other arguments to be unavailing and without merit.

This matter is hereby adjourned to a mutually convenient date for further proceedings in accordance with Section 23 of the DLRA.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: As will be discussed, infra, this crime has since (effective December 14, 2004) been redefined.

Footnote 2: Although a predicate violent felon at the time of his conviction and sentence, the defendant's predicate status was not a relevant factor for the sentencing range on an A-I felony conviction.

Footnote 3: By virtue of Section 21 of the Drug Law Reform Act, the possession of four or more ounces (but less than eight ounces) of a substance containing a narcotic drug now constitutes the crime of Criminal Possession of a Controlled Substance in the Second Degree, an A-II felony.

Footnote 4: The sentencing range on an A-II felony conviction for a Predicate Violent Felon is eight to 17 years' incarceration, with five years' Post Release Supervision (Penal Law § 70.71[4][b][ii]).

Footnote 5: Since the passage of the DLRA, the Legislature has promulgated additional reformative drug offense legislation. Effective October 29, 2005, Chapter 643 of the Laws of 2005 provides for the re-sentencing (to a determinate sentence) of certain class A-II felony drug offenders currently serving indeterminate sentences.

Footnote 6: There is no such legislative intent expressed in the DLRA. On the contrary, by its very terms, with the exception of several narrow provisions not here applicable, the DLRA was to take effect prospectively (see also, People v Nelson, 21 AD3d 861 [1st Dept., 2005]).

Footnote 7: Mr. Watts does not challenge the constitutionality of his prior violent felony conviction.