PEOPLE v. ABREU (2005)

Judgment, Supreme Court, Bronx County (John N. Byrne, J. at plea;  John P. Collins, J. at sentence), rendered November 25, 2003, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/212 to 9 years, unanimously affirmed.

 Defendant's waiver of his right to appeal forecloses review of the severity of his lawful sentence (People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ).   Were we to find that defendant's argument is not foreclosed, we would find that defendant is not entitled, pursuant to the amelioration doctrine of People v. Behlog, 74 N.Y.2d 237, 544 N.Y.S.2d 804, 543 N.E.2d 69 [1989], to the benefit of the reduced penalty contained in the Drug Law Reform Act (L. 2004, ch. 738), because the Legislature has expressly stated that the provision applicable to defendant's situation applies only to crimes committed after its effective date (People v. Nelson, 21 A.D.3d 861, 804 N.Y.S.2d 1 [2005] ).   Moreover, and, in any event, the amelioration doctrine could not apply where, as here, defendant was sentenced before the new law's effective date (People v. Walker, 81 N.Y.2d 661, 666-667, 603 N.Y.S.2d 280, 623 N.E.2d 1 [1993] ).