CHANGES TO ROCKEFELLER DRUG LAWS APPLY TO DEFENDANTS PENDING SENTENCE

People v. Hasson Denton, et al - These cases present the issue of whether
the ameliorative portions of the recently enacted changes to the
Rockefeller drug laws [Drug Reform Act-DRA] are to be retroactively applied
to the defendants who have not been sentenced prior to the effective date
of the new statute. The People, in a memorandum of law, request that the
court renege on the sentence promises made to the repective defendants. The
prosecution alleges that the recent sentence reductions made by DRA to the
so-called Rockefeller drug laws do not apply retroactively to these
defendants and thus the sentences promised by the court with the District
Attorney's consent are illegal. The government urges the court to permit
the defendants to withdraw their guilty pleas, or in the alternative, if
the defendants do not wish to withdraw their guilty pleas to sentence the
defendants in accordance with the law applicable at the time of the
commission of the crimes.

In deciding this motion, the court has considered the prosecution's
memorandum of law, oral argument by all parties and the court file.

Background

As a result of a long-term investigation into the narcotics trade in a city
run housing development in Coney Island, Brooklyn, New York, numerous
defendants were indicted for various narcotics related crimes. The crimes
were committed between June 21, 2001 and January 22, 2003.

By bill signed by the Governor on December 14, 2004 effective January 13,
2005, the legislature altered the punishment for most narcotics crimes.1 In
most cases, the punishment was reduced. In some instances, the punishment
was enhanced.

As part of the legislation, the bill provided that the sections applicable
to punishment will apply to all crimes committed after the effective date.2

On January 5, 2005, each of the above named defendants moved to withdraw
their not guilty pleas and to plead guilty to particular narcotics crimes.
With the consent of the People, the court promised each of the defendants a
sentence authorized under the new statute but unauthorized under the law as
it existed at the time of the of the commission of the criminal act. After
a full and complete allocution, the court accepted the defendants' pleas.
Sentencing was scheduled for each defendant for January 27, 2005.

By memorandum of law dated January 26, 2005, the People made the instant
application.

Legal History of Retroactivity of Ameliorative Criminal Statutes

On January 16, 1894, the Court of Appeals decided People v. Hayes.3 In 1891
and as a result of a civil action, the defendant Hayes committed perjury.
The defendant was then indicted for the perjury. In 1892, the legislature
reduced the term of imprisonment for perjury by eliminating any required
minimum term of incarceration. Mr. Hayes argued that since the old law was
replaced by a new statute, he could not be sentenced under the old law. At
common law with the enactment of a new statute, the new statute repealed
the prior law so that the old statute could no longer be enforced.4 Mr.
Hayes also argued that he could not be sentenced under the new law because
application of a statute not in effect at the time of the commission of his
crime violated the ex post facto prohibition of the federal constitution.

The Court of Appeals, recognizing that the old statute was inapplicable,
nonetheless stated:5

"In many if not in most cases the reasons for mitigating the severity of
the punishment for any particular kind of crime would apply with equal
force to those cases in which the crime had been committed before, as well
as to those in which the crime might be committed subsequent to the
enactment of the law, and we are aware of no policy which prevents such a
construction of the constitutional provision as would permit that kind of a
retrospective act. That it materially affects the punishment prescribed for
a crime is not the true test of an ex post facto law. In regard to
punishment it must affect the offender unfavorably before it can be thus
determined. It seems to us plain that there can be no reason for any other
view." [Emphasis supplied]

The Court recognized that there exists no policy reason for not applying
remedial statutes to a person who committed a crime before the ameliorative
law was enacted. The court observed that whatever reason that the
legislature had for reducing punishment would be equally applicable to
crimes committed before its enactment as to crimes committed after its passage.

In 1892, the legislature enacted what is known as a "saving clause."6 The
saving clause provides that notwithstanding that a new statute is enacted,
such enactment would not affect any rights under the old statutes, and
punishment imposed under the old statute is valid.

On June 12, 1932, the Court of Appeals decided People v. Roper.7 In Roper,
while the case was pending, the legislature reduced the maximum sentence
for robbery in the first degree. The Court mentioned the saving clause and
rejected its applicability and held that the new reduced maximum sentence
applied to Mr. Roper's pending case even though he had committed the crime
prior to the effective date of the reduction of the maximum sentence
[citing Hayes].

On April 24, 1956, the Court decided, what has become known as the seminal
case in the area of retroactivity of ameliorative statutes, People v.
Oliver.8 In Oliver, on April 3, 1945, the defendant,14 years old, killed
his two years old sibling. The defendant was indicted for murder. After
arraignment, a competency hearing was held and the defendant was found
unfit to proceed and was placed in a facility for the mentally incompetent.
In 1948, the legislature enacted a statute barring the adult prosecution of
14 years old persons for murder. In October 1954, the defendant was
returned to the court as fit to proceed. On appeal, the defendant argued
that the indictment should have been dismissed because the newly enacted
law exonerating 14 year olds from committing murder applied to him. The
People argued that under the "saving clause" new statutes applied only to
crimes committed after the effective date.

The Court of Appeals rejected the government's argument. The Court
extensively discussed the "savings clause" and found that it was enacted to
prevent certain anomalies, and not to bar retroactive application of
amelioratory legislation to pending cases. The Court went on to hold:9

"And, indeed, where an ameliorative statute takes the form of a reduction
of punishment for a particular crime, the law is settled that the lesser
penalty may be meted out in all cases decided after the effective date of
the enactment, even though the underlying act may have been committed
before that date...

"This application of statutes reducing punishment accords with the best
modern theories concerning the functions of punishment in criminal law.
According to these theories, the punishment or treatment of criminal
offenders is directed toward one or more of three ends: [1] to discourage
and act as a deterrent upon future criminal activity, [2] to confine the
offender so that he may not harm society and [3] to correct and
rehabilitate the offender. There is no place in the scheme for punishment
for its own sake, the product simply of vengeance or retribution ... A
legislative mitigation of the penalty for a particular crime represents a
legislative judgment that the lesser penalty or the different treatment is
sufficient to meet the legitimate ends of the criminal law. Nothing is to
be gained by imposing the more severe penalty after such a pronouncement;
the excess in punishment can, by hypothesis, serve no purpose other than to
satisfy a desire for vengeance. As to a mitigation of penalties, then, it
is safe to assume, as the modern rule does, that it was the legislative
design that the lighter penalty should be imposed in all cases that
subsequently reach the courts." [Emphasis supplied citations omitted].

The Court described the failure to retroactively apply a reduction in
penalties to pending cases as "vengeance" and "nothing to be gained."
Indeed, the Court within two paragraphs uses the word "vengeance" to
describe the failure to apply retroactively a reduction in punishment to
case pending when the mitigating legislation is enacted even though the
crime was committed prior to the enactment of such legislation. The Court
also observed that there exists no legitimate penal policy for failing to
apply a reduction of punishment to cases where judgment had not been entered.

On May 18, 1961, the Court of Appeals decided People v. Konono.10 Ms.
Konono was indicted on May 16, 1957 for a crime which was elevated to
higher degree because she had committed a prior crime. Effective July 1,
1957 and prior to Ms. Konono's trial, the legislature prohibited the
introduction of prior crime evidence if a defendant admitted the crime
outside the presence of the jury. The Court held that this amelioratory
statute would apply to cases indicted but not tried prior to its enactment.

On July 13, 1989, the Court of Appeals decided People v. Behlog.11 Mr.
Behlog was indicted for unlawfully taking property worth more than $250, as
grand larceny in the third degree. Shortly thereafter, the legislature
raised the monetary threshold for grand larceny in the third degree to
stealing property having a value of more than $1,000. Under the new
statute, larceny of property valued at $250 became a misdemeanor. The
People alleged in the Court of Appeals that they had proven at trial that
the defendant stole property worth $1,759.91.12 Notwithstanding this fact,
the Court of Appeals held that since the indictment charged theft of $250
or more and under the new law this was a misdemeanor, the new reduction
applied to the defendant. In so holding the Court said:

"The general rule is that nonprocedural statutes "are not to be applied
retroactively absent a plainly manifested legislative intent to that
effect" [People v. Oliver, 1 NY2d 152, 157]. There is an exception,
however, when the Legislature passes an ameliorative amendment that reduces
the punishment for a particular crime. In such a case "the law is settled
that the lesser penalty may be meted out in all cases decided after the
effective date of the enactment, even though the underlying act may have
been committed before that date" [id., at 160]. The rationale for this
exception is that by mitigating the punishment the Legislature is
necessarily presumed - absent some evidence to the contrary - to have
determined that the lesser penalty sufficiently serves the legitimate
demands of the criminal law [id.]. Imposing the harsher penalty in such
circumstances would serve no valid penological purpose [id.; see also, In
re Estrada, 63 Cal 2d 740, 408 P2d 948, 951-952 [following Oliver rule]]."
[Emphasis supplied, footnote omitted]

The Court of Appeals reiterated that imposing a harsher sentence after the
legislature had reduced the punishment serves "no valid penological purpose."

On October 12, 1993, the Court of Appeals decided People v. Walker.13 In
Walker, the defendant claimed that one of his predicate felonies should not
be considered as a felony because since judgment on the prior felony, the
crime was reduced to a non-felony. The Court discussed retroactivity and
set forth the following principles:14

"When, between the time a person commits a criminal act and the time of
sentencing, a criminal statute is repealed or a penalty reduced because of
a changed view regarding the gravity of the crime, the amelioration
doctrine dictates that the punishment standard at the time of sentencing
should guide the sentence [People v. Oliver, 1 N.Y.2d 152, 151]. The
doctrine is rooted in the view that where a reduction in the penalty for a
crime indicates a legislative judgment that the lesser penalty adequately
meets all the legitimate ends of the criminal law, imposing a harsher
penalty would be an exercise in vengeance, which the law does not permit
[Oliver, 1 N.Y.2d at 160]." [Emphasis supplied].

The Court not only described the act of applying a harsher punishment to
pending case as "vengeance"; it described such application as something
"the law does not permit."

It is noted that, ultimately, the Walker court restricted the rule that
ameliorative laws apply to pending cases even when the crime is committed
prior to the enactment of the remedial legislation to cases in which the
imposition of sentence were pending and not to cases in which judgment had
been imposed prior to the effective date of the legislation.15

In order to adopt the People's position that the reduction of punishment by
the legislature to the Rockefeller drug law was not retroactive to cases in
which there has been no judgment entered, the court would have to find that
the legislature and the governor acted with "vengeance," with no "valid
penological purpose" and did something that the "law does not permit."16

Chapter 738 Laws of 2004

In the governor's State of the State address delivered January 7, 2004, the
governor said:17

"And let's have proportionality in our laws. The Rockefeller Drug Laws
allow non-violent drug offenders to be more severely punished than rapists.
We need to change that. Let's reform these antiquated laws this year."

The governor described the punishments meted out by the Rockefeller laws as
disproportionate to other criminal punishments and antiquated.

The legislature's memorandum, in support of the amendments, in the section
described as "justification" for reducing the punishment for certain drug
crimes stated:18

"New York's 'Rockefeller Drug Laws' have been the subject of intense
criticism for many years. The current laws provide inordinately harsh
punishment for low level non-violent drug offenders, warehouse offenders in
state prison who could more productively be placed into effective drug
treatment programs and waste valuable state tax dollars which could be used
more effectively to provide drug treatment to addicts and harsh punishment
to violent criminals."

The legislature described the old sentencing structure as "inordinately
harsh" and "waste[s] valuable state tax dollars."

In addition, the law enables prisoners currently serving sentences under
the old drug law eligible for an additional 1/6th merit time. This was
enacted so that the prisoners sentenced under the old law would serve a
comparable prison sentence to those sentenced under the new law.

Similarly, the shortening of parole terms for old law offenders was enacted
to parallel the parole requirements under the new law. This also indicates
that the legislature wanted to treat old law offenders like new law offenders.

Also, the new law permits prisoners sentenced to a class A felony sentence
under the old law to make a motion for resentencing under the new law.
Under the People's argument, a court would sentence a defendant who
committed a class A drug felony to the old law sentence and then that
person could then immediately turn around and ask to be resentenced under
the new law. It is highly unlikely that the legislature intended such a
charade.

In the Governor's press release upon signing the bill, he commented that
the bill provides "retroactive relief for virtually all non-violent drug
felons."19 If the People are correct there is an exception to the
retroactivity for non-violent drug felons whose cases are pending when the
bill was signed.

It is clear that the legislature intended to equalize prisoners sentenced
under the old law with those sentenced under the new law. It would
anomalous if the court were required to sentence the defendants to a
harsher sentence only to have the Department of Corrections mitigate the
harshness of the sentence by applying the new provisions of the law.
Sentencing is a function of the court and not the Department of
Corrections. This court does not believe the legislature wanted to create
the charade of having this court sentence the defendants to a harsh
sentence only to permit the Department of Correction to mitigate the
court's sentence.

Therefore, this court will not interpret the new law to "waste valuable tax
dollars," to impose an "inordinately harsh" sentence and to impose a
disproportionate sentence of an "antiquated" law. The legislature has shown
that it wished to treat old law offenders equally with new law offenders.

Given all of the above, the court finds that when the new law stated that
the punishment sections were to apply to crimes committed after the
effective date, the legislature and the governor intended this to apply to
those portions of the law which enhanced punishment.20 The section was
inserted to avoid any ex post facto problems to those portions that enhance
punishment. Where no ex post facto issues exist, it was not the
legislature's intent to prohibit retroactive application to cases in which
judgment had not been entered. However, as held by the Walker court, the
ameliorative sentencing provisions do not apply to defendants who have
already been sentenced on the effective date of the legislation.

The People's motion is denied.

This constitutes the decision and order of the court.

1. Chapter 738 of the Laws of 2004.

2. Section 41 [d-1].

3. 140 NY 484 [1894].

4. See People v. Oliver, 1 NY2d 152, 158-159 [1955]; People v. Behlog, 74
NY2d 237, 240-241 [1989].

5. 140 NY at 491-492.

6. Currently General Construction Law ?[?[93 and 94.

7. 259 NY 635 [1932].

8. 1 NY2d 152 [1956]

9. 1 NY2d at 159-160.

10. 9 NY2d 924 [1961].

11. 74 NY2d 237 [1989].

12. Ibid at 242.

13. 81 NY2d 661 [1993].

14. Ibid at 666.

15. The court is aware that the Appellate Divisions have created an
exception to the retroactivity of ameliorative legislation rule where the
failure to sentence a defendant is caused by misconduct of the defendant
[see People v. Allen, 309 AD2d 624, 624 [2003]; People v. Acoff, 289 AD2d
1085, 1086 [2001]].

16. Ibid.

17. McKinney's 2004 Session Law News of New York, as found in Westlaw.

18. Ibid.

19. Page 3 of 4 of the governor's press release Tuesday December 14, 2004.

20. This language differs significantly from the language in the statute
involved in People v. Festo, 96 AD2d 765, 766[1983] affd on the reason
below 60 NY2d 809, 810, 811 [1983]. Similarly, the language in the statutes
involved in People v. Pepples, 32 AD2d 1041, 1041 [1969] affd 27 NY2d 785
[1970] and People v. Millard, 32 AD2d 676, 676 [1969] is substantially
diufferent than the new legislation involved here. Pepples and Millard deal
with the same statute. Not only is the language different the legislative
history is also different. The language and history of a statute is
important [see People v. Teixeira, , 87 A.D.2d 895, 895 [1982]].