Opinion
732402
Decided May 9, 2005.
On December 17, 2004, defendant Edward Martinez was convicted of, inter alia, Criminal Possession of a Controlled Substance in the First Degree, Penal Law § 220.21(1), for "knowingly and unlawfully possessing one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of four ounces or more." The crimes were committed on or about October 30, 2002. The defendant has not yet been sentenced.
Defendant moves to be sentenced under the provision of the 2004 Drug Law Reform Act ("DLRA), L. 2004, Ch. 738, §§ 1-41. The new law was signed into law by the Governor on December 14, 2004. The DLRA created, inter alia, a new sentencing structure for drug crimes under Article 220 of the Penal Law. In addition, the DLRA amended the weight requirements for A-1 and A-11 narcotic drug possession offenses.
Defendant argues that his conviction must be reduced to a Class A-11 felony and that he should be sentenced under the revised sentencing structure of the DLRA.
Penal Law § 220.21(1), Criminal Possession of a Controlled Substance in the First Degree, as amended, raised the aggregate weight requirement for the A-1 felony from four ounces or more to eight ounces or more. Penal Law 220.18(1), the A-11 felony of Criminal Possession of a Controlled Substance in the Second Degree, as amended, requires proof of possession of four or more ounces, from the previous requirement of two ounces or more.
Further, under the DLRA, the sentencing range for the crime of Penal Law 220.18(1) now requires a determinate sentence be entered, with the applicable range varying depending on whether a defendant is a first felony offender, second felony offender with a non-violent predicate, or second felony offender with a violent predicate felony. All A-11 convictions under the new law require the imposition of five years post-release supervision. Previously, all A-11 felonies were sentenced to indeterminate prison terms.
Defendant contends that under the rational of People v. Behlog, 74 NY2d 237 (1989), when an ameliorative amendment to a statute reduces the penalty for a particular crime, effective in law after the date a defendant commits a crime but prior to the date of a defendant's sentencing, the defendant is entitled to application of the mitigated penalty. The People contend that Behlog is distinguishable from the changes to the Rockefeller drug laws.
Having heard oral argument from the parties, and after consideration of the parties submissions and the law, I find the DLRA applicable.
Changes to the Weight Requirements for A-1 and A-11 Possession Crimes
The changes to the weight requirements for conviction of A-1 and A-11 drug felonies clearly come within the rational of Behlog, 74 NY2d 237, supra. One of the main goals of the legislation in changing the weight requirements for these narcotic possession crimes (as well as in the creation of the new sentencing structure) was, without question, the legislature's intention to remedy the harshness of those penalties. ( See, the discussion of the legislative intent in People v. Denton, 2005 NY Slip Op 25029; 2005 WL 236167 [Feb. 1, 2005, Gerges, J.]).
Moreover, in Behlog, supra (as in the A-1 and A-11 crimes of possession at issue herein), the change in the law involved a change in the statutory definition of the crime, increasing the criminal behavior necessary for a defendant to be guilty of the charged crime. In Behlog the change required a greater degree of theft. In the current situation, the change requires possession of a greater amount of a narcotic drug. In both cases, the charged acts were reduced to a lesser crime by the change in law. In Behlog, a defendant's conduct was reduced from a felony to a misdemeanor. Here, the defendant's conduct was reduced from an A-1 felony to an A-11 felony.
Additionally, the changes to the weight requirements for A-1 and A-11 under the new act, are indisputably immediately effective. ( See, §§ 21, 22 and 41 of the DLRA). The People, in their memorandum of law, implicitly concede the applicability of Behlog to the changes in the weight requirements, when they state ". . . the weight changes for A-1 and A-11 drug felonies — were given immediate effect, and are arguably subject to retroactive application in at least some instances." (People's Memorandum of Law, p. 4, ¶ 1). Accordingly, I find that Behlog applies to the changes to the weight requirements of the A-1 and A-11 felonies in the DLRA.
The People, however, have argued that even if Behlog applies in general to this situation, it should not be applied in this case because the evidence presented to the trial jury could have supported a finding that the defendant and codefendant actually possessed cocaine in excess of eight ounces. Thus, the People contend that because the defendants could have been indicted for an A-1 felony under the amended statute, the legislature would not have meant the changes in the law to be applied to these defendants.
However, in Behlog, the Court of Appeals rejected this very argument. In Behlog, the People argued that the new law should not apply to Mr. Behlog because he would still have been guilty of a felony under the amended statute, which had raised the value of stolen property required for a conviction of the felony of Grand Larceny in the Third Degree from an excess of $250 to an excess of $1,000. The Behlog trial jury had been presented with evidence that the aggregate retail value of the property stolen by Mr. Behlog was $1,759.91, in excess of the new felony requirement of $1,000. The Court of Appeals, however, refused to speculate as to whether the trial jury would have convicted the defendant under a different theory than the one actually presented to them, that he had stolen property with a value in excess of $250. Likewise, in this case, the jury was asked to find the defendant possessed four or more ounces of cocaine. While there was evidence presented from which a jury could have found these defendants possessed eight or more ounces of cocaine, under Behlog, this court is precluded from speculating that they would have convicted under the new weight requirements if they had been presented with that alternative theory.
Accordingly, I will sentence the defendant for a conviction of the crime of Criminal Possession of a Controlled Substance in the Second Degree, Penal Law § 220.18(1) under the DLRA which contains the same weight requirement for which he was convicted at trial.
Changes to the Sentencing Structure
The second question is whether the defendant is to be sentenced to an indeterminate sentence under the old drug law's sentencing scheme for A-11 felonies or to a determinate sentence under the DLRA's determinate sentencing structure. As previously indicated, I find the principal goal of the changes in the sentencing structure was ameliorative.
Defense counsel argues, that under Behlog, supra, the new sentencing laws, having such an ameliorative goal, should be applied to all cases where sentence has not been imposed prior to the effective date of the law.
The People argue that language in the DLRA, appearing in § 41 of the legislation, signals a clear legislative intent to apply the new sentencing structure only to cases where the crime itself was committed on or after January 13, 2005, and to exclude from its coverage pending cases if the crime was committed prior to the effective date.
Section 41 of the DLRA states, in relevant part:
"This act shall take effect immediately, provided that: (d-1) the provisions of sections twelve, fourteen, fifteen, eighteen, twenty, twenty-four, twenty-five, twenty-nine, thirty-three, thirty-five, and thirty-six of this act shall take effect on the thirtieth day after it shall become a law, and such provisions, with the exception of subdivision 6 of 60.04 of the penal law as added by section twenty of this act, shall apply to crimes committed on or after the effective date thereof."
The new sentencing structure appears in § 36.
Contrary to the People's argument, the case law indicates this type of language is not sufficient to demonstrate a legislative intent to negate the general rule that a statute which reduces punishment is applicable to pending matters for which a defendant has not yet been convicted and sentenced.
Behlog made clear that where an ameliorative amendment to a statute reduces the punishment for a particular crime, the lesser penalty applies to all cases pending sentence even though the underlying act was committed before the effective date. "The rational 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. Imposing the harsher penalty in such circumstances would serve no valid penological purpose." ( Behlog, 74 NY2d at 240, citations omitted). Behlog reiterated the long standing principal that absent express instructions in the statute regarding its effect on prior behavior, the ameliorative effects of the law will be applied to pending charges. See also, People v. Oliver, 1 NY2d 152, 160-162 (1956). It must be remembered that, under the rational of Behlog, the DLRA is not being given retroactive effect in the traditional sense of the word. The new sentencing structure is not applied to cases for which sentence has been imposed prior to the effective date of the law, but rather, only to cases pending sentence as of January 13, 2005.
The one exception in the DLRA is for A-1 felonies, allowing for re-sentencing of sentenced prisoners who are serving prison terms of 15 years to life or more. L. 2004, Ch. 738, § 23.
Absent from § 41 or any other part of the DLRA is the standard clause that would be included by the Legislature if it had an actual intent to negate the Behlog principal. Generally, when the Legislature's intent is to exclude cases where judgment has not yet been entered from an ameliorative law's coverage, the statute will include, at a minimum, express language to the effect that offenses committed prior to the effective date of the law shall be governed by the provisions of law in effect at the time the offense was committed. Such language is easily includible and appears in numerous statutory changes, however, it was omitted from this legislation.
In People v. Festo, 96 AD2d 765 (1st Dept 1983), aff'd 60 NY2d 809 (1983), a change in the law made defendant's acts punishable as an A-11 felony rather than an A-1 felony. The Festo court did not apply the change to defendant's case although he had not yet been tried, convicted and sentenced by its effective date. The Festo court took note of the general rule that ameliorative effects of a change in law are to be applied to crimes committed before the statute was enacted, but for which sentence is not imposed until after the statutory change take effect. Id. at 766. However, the Festo court did not apply the ameliorative effect to Mr. Festo's case because it found the explicit language in the new legislation, directly excluding from its coverage all pending cases, specifically enjoined the courts from imposing the lesser penalty.
The amendment to the statute in Festo expressly provided that: ". . . the provisions of this act do not apply to or govern the construction of and punishment for any offense committed prior to the effective date of this act, or the construction and application of any defense to a prosecution for such an offense. Such an offense must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if this act had not been enacted. (Emphasis supplied)." Id. at 766. No such language appears in the current legislation. See, People v. Estela, NYLJ, February 3, 2005, at 18, col. 1 (Sup Ct, NY Co, Wetzel, J.).
Almost identical language to that in Festo was contained in the amendment to the Penal Law at issue in People v. Pepples, 32 AD2d 1041 (2nd Dept 1969), aff'd 27 NY2d 785 (1970). Therefore, due to the express exclusion for pending crimes in the new legislation, the court in Pepples, declined to apply the new law to crimes committed prior to the effective date. In noting the explicit exclusion, Pepples' cited to the language of People v. Roper, 259 NY 170, 180, (1932), that: "In the absence of a clause excluding from its provisions offenses previously committed, the law as amended applies in all trials held thereafter, even for offenses previously committed." (Emphasis supplied by Pepples Court).
These decisions illustrate that the mere inclusion of the language that the law "shall apply to crimes committed on or after the effective date thereof" is insufficient to overcome the Behlog rule. The language in § 41 merely sets the date of the full applicability of the law, including some provisions of the new law which may actually increase penalties for drug crimes, as in the case of defendants with prior violent felony convictions. Such language avoids ex post facto problems. ( See, People v. Denton, 2005 NY Slip Op 25029; 2005 WL 236167, supra).
Therefore, the lack of a specific and express exclusion for pending offenses committed prior to the effective date of the DLRA, requires those cases be afforded the benefits of the new sentencing structure.
Furthermore, the thirty day delay of the effective date in § 41 does not indicate an intent by the Legislature to apply the benefits of the new sentencing structure only to crimes committed on or after January 13, 2005. The delay in the effective date of legislation can serve a number of purposes, including providing time to prepare for administering a new law. As noted by the People, the changes to the Comprehensive Alcohol and Substance Abuse Treatment program ("CASAT") in § 20 of the DLRA were delayed from becoming law for thirty days, until January 13, 2005, although it is undisputed they are to be retroactively applied to all non-sentenced defendants whose crimes were committed before January 13, 2005. If the thirty day delay indicates an intent for prospectively application only, the changes to CASAT should have been made immediately effective when the law was signed on December 14, 2004, rather than made effective thirty days after the law took effect. This is further evidence that the thirty day delay is a merely a means of providing time to place the new provisions of law into action, rather than indicating prospective application.
Moreover, it bears noting that the legislative amendment at issue in Behlog itself was not made immediately effective upon passage into law. The statute in Behlog stated: "This act shall take effect on the first day of November next succeeding the date on which it shall become a law." L. 1986, ch. 515, § 11. Despite this delay in the effective date, the Court of Appeals found the legislation applied to all crimes where a defendant had not yet been sentenced. ( See also, People v. Teixeira, 87 AD2d 895 [2nd Dept 1982]; absence of express savings clause required statutory change to apply to defendant's case which had not reached final judgment by the effective date of statute. The effective date in Teixeira was delayed to ". . . the first day of September next succeeding the date on which it shall have become of a law." L. 1980, ch. 873, § 3). While in People v. Sutton, 199 AD2d 878 (3rd Dept 1993), cited by the People, the Third Department noted a three month postponement of the effective date as "some" evidence of an intention to apply the amendment prospectively only, Sutton seems at odds with Behlog. The statutes at issue in Sutton and Behlog contained the exact same statutory language in setting the effective date: "This act shall take effect on the first day of November next succeeding the date on which it shall become a law". ( See, L. 1990, Ch. 906, § 2; and L. 1986, ch. 515, § 11).
Lastly, the People argue the exception of the CASAT drug program changes from the language that the provisions "shall apply to crimes committed on or after the effective date thereof" (§ 20, subd. 6 of the DLRA) exemplifies a legislative intent to make the entire new sentencing structure applicable only to crimes committed on or after the effective date. However, as previously noted, the cited language provides a means of avoiding ex post facto problems, a concern inapplicable to CASAT.
Accordingly, in the absence of an express clause in the DLRA indicating a legislative intent to exclude from its ameliorative provisions crimes committed prior to its effective date but not reaching final judgment until after the effective date, I find the principal of Behlog must be applied. The defendant will be sentenced under the new sentencing provisions for A-11 felonies.
This constitutes the decision and order of the Court.