PEOPLE v. CAMPBELL

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

The PEOPLE of the State of New York, Respondent, v. Tasha CAMPBELL, also known as Tasha Camble, also known as Bernice Keys, also known as Raquel Wallace, Defendant-Appellant.

Decided: February 21, 2006

TOM, J.P., MAZZARELLI, ANDRIAS, NARDELLI, MALONE, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Jonathan M. Kirshbaum of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Jennifer Marinaccio of counsel), for respondent.

Judgments of resentence, Supreme Court, Bronx County (John P. Collins, J. at second felony offender adjudication;  Robert L. Cohen, J. at resentence), rendered August 11, 2005, convicting defendant, upon her pleas of guilty, of criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree, and criminal sale of a controlled substance in or near school grounds, and sentencing her, as a second felony offender, to concurrent terms of 4 1/212 to 9 years, unanimously affirmed.

The court properly resentenced defendant under the law applicable at the time of the crimes.   Following a remand from this Court (17 A.D.3d 235, 793 N.Y.S.2d 393 [2005], lv. denied 5 N.Y.3d 786, 801 N.Y.S.2d 807, 835 N.E.2d 667 [2005] ), defendant was resentenced for crimes she committed prior to the effective date of the Drug Law Reform Act (L. 2004, ch. 738).   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 new law, because the Legislature has expressly stated that the provision upon which defendant relies applies only to crimes committed after its effective date (People v. Nelson, 21 A.D.3d 861, 804 N.Y.S.2d 1 [2005] ).   Accordingly, there is no lawful basis upon which to reduce defendant's mandatory minimum sentence.

Defendant's constitutional challenge to the procedure under which she was adjudicated a second felony offender is without merit (see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 [1998] ).