PEOPLE v. BELTRE

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Stacy BELTRE, etc., Defendant-Appellant.

Decided: November 22, 2005

SAXE, J.P., MARLOW, ELLERIN, GONZALEZ, McGUIRE, JJ. Laura R. Johnson, The Legal Aid Society, New York (Adrienne Gantt of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Alexis Pimentel of counsel), for respondent.

Judgments, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered November 13, 2003, convicting defendant, upon his pleas of guilty, of criminal sale of a controlled substance in or near school grounds and criminal possession of a controlled substance in the third degree, and sentencing him to concurrent terms of 2 to 6 years, unanimously affirmed.

 By waiving his right to appeal, defendant “elect[ed] to foreclose review” (People v. Callahan, 80 N.Y.2d 273, 285, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992];  People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ) of the length of his lawful sentence.   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 he was sentenced before the statute'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] ).   Moreover, the Legislature negated the amelioration doctrine and expressly provided that the provisions of the new law defendant relies upon apply only to crimes committed after its effective date (People v. Nelson, 21 A.D.3d 861, 804 N.Y.S.2d 1 [2005] ).