PEOPLE v. SMITH

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

The PEOPLE of the State of New York, Appellant, v. Corey SMITH, Defendant-Respondent.

Decided: November 22, 2005

TOM, J.P., ANDRIAS, SULLIVAN, GONZALEZ, MALONE, JJ. Robert M. Morgenthau, District Attorney, New York (Mark Dwyer of counsel), for appellant. Robert S. Dean, Center for Appellate Litigation, New York (Claudia S. Trupp of counsel), for respondent.

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered February 1, 2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 1/212 years, unanimously modified, on the law, to the extent of vacating the sentence and remanding to Supreme Court for resentencing in accordance with the decision herein, and otherwise affirmed.

Defendant committed this crime before the effective date of the Drug Law Reform Act (L. 2004, ch. 738) but was sentenced after that date.   The sentencing court erred when it invoked 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 give defendant the benefit of the reduced penalty contained in the new law.   We have concluded that for purposes of the Drug Law Reform Act, the Legislature intended to negate the amelioration doctrine (People v. Nelson, 21 A.D.3d 861, 804 N.Y.S.2d 1 [2005] ).   Accordingly, we remand for resentencing in accordance with the law applicable at the time of the crime.