PEOPLE v. WEAVER (2005)

Defendant Benny Weaver was indicted by an Ulster County Grand Jury on August 13, 2004 and charged by Indictment# 165-04 under Count 1 with criminal possession of a controlled substance in the first degree (A-1) and under Count 2 with Criminal Possession of a controlled substance in the third degree (B);  both crimes were allegedly committed on June 26, 2004.   He is a second felony offender but not a violent offender.

During the course of plea negotiations the defendant was offered by the People a plea to a B felony in satisfaction of the indictment with a minimum sentence of 4 1/212 to 9 years in state prison.

Prior to defendant's plea the New York State Legislature passed the Drug Law Reform Act (DLRA) and Governor Pataki signed said act into law on December 14, 2004.

A pre-plea conference was held on February 25, 2005 wherein a potential plea bargain was presented seeking the court to accepting a plea to the B felony in satisfaction of the A-1 felony and the minimum mandatory state prison sentence based upon the newly enacted DLRA.

ADA and DEFENSE POSITIONS

The People are willing to take the plea with a minimum sentence.   The sole issue in contention is, what is the minimum state prison sentence now allowed by law?

The then Defense Attorney argues that the newly enacted DLRA should be applied retroactively and authorizes;  not only a plea to a B felony reduction from an A-1 felony but also the appropriate sentence should be a 3 1/212 determinate prison term with post release supervision set by the court at a determinate time of the minimum of 1 1/2 to a maximum of 3 years.

Drug Law Reform Act (DLRA)

The new Drug Law Reform Act (DLRA) was the response of the New York State Legislature to a long time call to amend the, so called, Rockefeller drug laws which some have argued were outdated and Draconian.

Chapter 738 of the Session Laws of 2004 through Senate Bill S.7802 and Assembly Bill A.11895 amends, adds or deletes various sections of the correction law, criminal procedure law, penal law and executive law.   The Governor signed the Act on December 14, 2004.   Most of the new laws took effect on January 13, 2005 (thirty days after signing by Governor) but one section became effective on December 27, 2004 (thirteen days after signing).

The new laws applicable to the present case are as follows:

§ 16 amended CPL 220.10(5)(a)(i) to allow a plea to a B felony drug offense from an A-I or A-II drug offense.   This new section took effect on December 27, 2004.

§ 36 added PL § 70.70 and 70.71 for new guidelines for sentencing of drug offenders.

New PL § 70.70(3)(a) and 70.70(3)(b)(i) set sentence for a second felony drug offender (non-violent) convicted of a B felony at a determinate term from a minimum of 3 1/212 to a maximum of 12 and post release supervision of a determinate term of a minimum of 1 1/2 to a maximum of 3 years.

§ 41 specifies effectiveness of the new laws as follows:

§ 41(e-1).   § 16 (allowing reduction from A-I to B felony) is effective the thirteenth day after the signing.   Thus, December 27, 2004.   There is no language regarding effectiveness for crimes charged prior or after the effective date of the law.

§ 41(d-1).   § 36 (the new sentencing guidelines for a B second felony drug offender (non-violent) at a determinate term with post release supervision) is effective thirty days after signing (January 13, 2005) and “shall apply to crimes committed on or after the effective day.”

ISSUES

1. May DLRA § 16 be applied retroactively to allow the defendant herein to plead to a B felony in satisfaction of an A-1 felony for a crime committed (June 26, 2004) prior to the effective date of the legislation(December 27, 2004)?

2. May DLRA § 36 (new sentencing guidelines) be applied retroactively to allow the defendant a reduced sentence to a B felony committed (June 26, 2004) prior to the effective date of the legislation(December 27, 2004)?

FINDINGS

Prior to the new laws above, an A-I could not be reduced lower than an A-II but an A-II could be lowered to a B.

Under PL § 70.06(3)(b) and 70.06(4)(b) the sentence for a B felony second (non-violent) offender ranges from a minimum indeterminate for 4 1/212 to 9 to a maximum indeterminate of 12 1/212 to 25.

§ 16 [CPL § 220.10(5)(a)(i) ] is a procedural statute which is silent as to retroactivity to crimes prior to the effective date of December 27, 2004.

§ 36 (PL § 70.70) is a substantive statute which specifies that it is only effective to crimes committed on or after the effective date of January 13, 2005.

There is no question that the crimes that the defendant is charged with under Indictment 165-04 were committed on June 26, 2004 prior to the earliest effective date herein of December 27, 2004.

The defense argues that this Court should apply a retroactive effect to the CPL § 220.10(5)(a)(i)(reduction statute) and PL § 70.70 (sentencing guidelines) based on People v. Behlog, 74 N.Y.2d 237, 544 N.Y.S.2d 804, 543 N.E.2d 69 (1989).

The defense is in error.  Behlog, supra.;  People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134 N.E.2d 197.

 “The general rule is that nonprocedural statutes “are not to be applied retroactively absent a manifest 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] ).   There is an exception, however, when the Legislature passes an ameliorative amendment that reduces the punishment for a particular crime.․  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 the lesser penalty sufficiently serves the legitimate demands of the criminal law.”   Behlog, supra.

The reduction statute (CPL 220.10) is a procedural statute and does not specify whether it is intended to be retroactive.

The sentencing statute (PL 70.70), on the other hand, is a substantive (nonprocedural) statute which specifies that it is not retroactive to the January 13, 2005 effective date and, thus, does not fit the criteria of Behlog.

Honorable Judges in the Empire State are divided on the issue.   For instance, Supreme Court Justice Hon. Marcy L. Kahn of Manhattan opined that the sentencing statute was not retroactive in People v. Singletary, 7 Misc.3d 1004(A), 2005 WL 756587, 2005 N.Y. Slip Op. 50441(U), N.Y.L.J., March 7, 2005, p. 18 while Acting Supreme Court Justice Honorable John Cataldo of Manhattan in People v. Martinez, 7 Misc.3d 1022(A), 2005 WL 1124234, 2005 N.Y. Slip Op. 50699(U), N.Y.L.J., March 15, 2005 P.1 and Supreme Court Justice Honorable Seymour Rotker of Queens in People v. Murray, 7 Misc.3d 636, 794 N.Y.S.2d 885, 2005 WL 589967, N.Y.L.J., March 15, 2005, P.1, ruled for retroactivity.

CONCLUSION

 This Court finds that the sentencing statute evinced in PL § 70.70 is not retroactive to crimes committed prior to the effective date of January 13, 2005 through the manifest intent of the plain language of DLRA § 41(d-1) that it “shall apply to crimes committed on or after the effective day” and that it is not the province of the trial judiciary to change the clear and unambiguous language of duly enacted law unless its application would effect an unconstitutional, illegal or harmful act.

Based upon the above, it is

ORDERED, that defendant Weaver may plead to the B felony in count 2 in satisfaction of the A-I felony in Count 1, and it is further

ORDERED, that upon a plea defendant Weaver's sentence will be guided by PL § 70.06 which has indeterminate sentencing from a minimum of 4 1/212 to 9 years to a max of 12 1/212 to 25.

This shall constitute the Decision and Order of this Court.

FRANK J. LaBUDA, J.