PEOPLE v. JAVARIS (2007)

Appeal by the People, as limited by their brief, from so much of a sentence of the Supreme Court, Kings County (Gerges, J.), imposed January 27, 2005, as was imposed upon the defendant's conviction of criminal sale of a controlled substance in the third degree, upon his plea of guilty, that sentence being a determinate term of six years imprisonment, to be followed by a two-year period of post-release supervision.

ORDERED that the sentence is reversed insofar as appealed from, on the law, and the matter is remitted to the Supreme Court, Kings County (Gerges, J.), for resentencing on the conviction of criminal sale of a controlled substance in the third degree in accordance herewith.

On January 5, 2005, the defendant, inter alia, pleaded guilty to criminal sale of a controlled substance in the third degree based upon conduct which occurred on May 10, 2002.   On January 27, 2005, the Supreme Court, among other things, sentenced the defendant pursuant to the provisions of the Drug Law Reform Act (L. 2004, ch. 738;  hereinafter the DLRA), to a determinate term of six years imprisonment, to be followed by a two-year period of post-release supervision.

The DLRA, while ameliorative in nature, expressly states that its sentencing provisions are to have only prospective application (see People v. Dickerson, 28 A.D.3d 787, 788, 813 N.Y.S.2d 544;  People v. Goode, 25 A.D.3d 723, 724, 809 N.Y.S.2d 128).   The relevant provisions of the DLRA became effective on January 13, 2005 (see People v. Utsey, 7 N.Y.3d 398, 403, 822 N.Y.S.2d 475, 855 N.E.2d 791;  People v. Dickerson, supra ).   Here, since the defendant's crime was committed before 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 applicable at the time of his offense (see People v. Zamor, 33 A.D.3d 827, 828, 822 N.Y.S.2d 606).