PEOPLE v. OVERTON (2006)

Appeal by the People from a sentence of the Supreme Court, Queens County (Rotker, J.), imposed May 11, 2005, upon the defendant's conviction of criminal sale of a controlled substance in the third degree (five counts), upon his plea of guilty, the sentence being concurrent determinate terms of imprisonment of three and one-half years, to be followed by a three-year period of post-release supervision.

ORDERED that the sentence is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance with the law in effect at the time the defendant committed the instant crimes.

On April 18, 2005, the defendant pleaded guilty to criminal sale of a controlled substance in the third degree (five counts).   In the course of his allocution, the defendant admitted that on five separate dates in March and April, 2004, he sold a quantity of cocaine to another person.   On May 11, 2005, the Supreme Court sentenced the defendant to concurrent determinate terms of imprisonment of three and one-half years, to be followed by a three-year period of post-release supervision.   The Supreme Court found that the defendant should benefit from the provisions of the Drug Law Reform Act of 2004 (L. 2004, ch. 738, hereinafter the DLRA).   The People now appeal, contending that the sentence imposed was illegal.   We reverse.

The relevant sections of the DLRA became effective on January 13, 2005, which was “the thirtieth day after” December 14, 2004, when the legislation was approved by the Governor (L. 2004, ch. 738, § 41[d-1] ).   Since the defendant's crimes were committed prior to the effective date of the new sentencing provisions, the sentence imposed upon the defendant pursuant to the DLRA was invalid as a matter of law, and the defendant must be resentenced under the law in effect at the time he committed the crimes (see People v. Torres, 26 A.D.3d 398, 809 N.Y.S.2d 187;  People v. Goode, 25 A.D.3d 723, 809 N.Y.S.2d 128).