Opinion
2018–15120 Ind. No. 9834/16
01-11-2023
The PEOPLE, etc., respondent, v. Alexander NDAULA, appellant.
Patricia Pazner, New York, NY (Rebecca J. Gannon of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Rachel Raimondi of counsel), for respondent.
Patricia Pazner, New York, NY (Rebecca J. Gannon of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Rachel Raimondi of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, LILLIAN WAN, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Martin P. Murphy, J.), rendered July 18, 2018, convicting him of criminal possession of a weapon in the fourth degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was indicted on charges of criminal possession of a controlled substance in the third degree (three counts), criminal possession of a controlled substance in the fourth degree (three counts), criminal possession of a controlled substance in the fifth degree (four counts), criminal possession of a controlled substance in the seventh degree (five counts), and criminal possession of a weapon in the fourth degree. On July 18, 2018, the defendant entered a plea of guilty to one count of criminal possession of a weapon in the fourth degree predicated on his possession of a gravity knife, in full satisfaction of the indictment.
The defendant contends that the judgment of conviction should be reversed because shortly after his conviction, Penal Law § 265.01(1) was amended to decriminalize the mere possession of a gravity knife. The Court of Appeals has long held that nonprocedural statutes "are not to be applied retroactively absent a plainly manifested legislative intent to that effect" ( People v. Oliver, 1 N.Y.2d 152, 157, 151 N.Y.S.2d 367, 134 N.E.2d 197 ). Here, the legislature did not explicitly state that the amendment should be applied retroactively (see People v. Johnson, 192 A.D.3d 603, 141 N.Y.S.3d 303 ; People v. Alston, 184 A.D.3d 415, 123 N.Y.S.3d 495 ; People v. Caviness, 176 A.D.3d 522, 108 N.Y.S.3d 838 ; see also People v. Busch, 76 Misc.3d 136[A], 2022 WL 4589206 ; People v. Banos, 68 Misc.3d 1, 125 N.Y.S.3d 833 ). While the Court of Appeals has carved out an exception to this general rule when the legislature passes an ameliorative amendment that reduces the punishment for a particular crime (see People v. Oliver, 1 N.Y.2d at 158–160, 151 N.Y.S.2d 367, 134 N.E.2d 197 ; see also People v. Behlog, 74 N.Y.2d 237, 240, 544 N.Y.S.2d 804, 543 N.E.2d 69 ), it has distinguished that situation from cases such as this in which the law decriminalizes certain conduct. In the latter case, the Court of Appeals noted that "the ‘State may prefer to retain the right to prosecute for the act previously committed in deliberate defiance of the law as it then existed’ " ( People v. Behlog, 74 N.Y.2d at 242, 544 N.Y.S.2d 804, 543 N.E.2d 69, quoting People v. Oliver, 1 N.Y.2d at 161 n. 3, 151 N.Y.S.2d 367, 134 N.E.2d 197 ). Further, under the circumstances of this case, we decline to exercise our interest of justice jurisdiction to vacate the judgment and dismiss the indictment (see CPL 470.15[6] ; People v. Torres, 73 Misc.3d 128[A], 2021 WL 4303097 ; cf. People v. Lester, 208 A.D.3d 684, 173 N.Y.S.3d 69 ; People v. Merrill, 187 A.D.3d 1058, 131 N.Y.S.3d 259 ).
DILLON, J.P., CHAMBERS, FORD and WAN, JJ., concur.