Pubdate: Mon, 07 Feb 2005
Source: New York Law Journal (NY)
Copyright: 2005 ALM Properties, Inc.
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Details: http://www.mapinc.org/media/615
Author: Justice Gerges
Bookmark: http://www.mapinc.org/prison.htm (Incarceration)
Bookmark: http://www.mapinc.org/find?140 (Rockefeller Drug Laws)
Bookmark: http://www.mapinc.org/rehab.htm (Treatment)

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]].