PEOPLE v. CAPACI

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

The PEOPLE of the State of New York, Respondent, v. Benjamin CAPACI, Appellant.

Decided: November 30, 2006

Before:  CARDONA, P.J., MERCURE, CREW III, SPAIN and CARPINELLO, JJ. Paul R. Maher, Clifton Park, for appellant. Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.

Appeal, by permission, from an order of the County Court of Sullivan County (LaBuda, J.), entered July 8, 2005, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence following his conviction of the crime of criminal sale of a controlled substance in the fifth degree.

Defendant pleaded guilty to criminal sale of a controlled substance in the fifth degree, waived his right to appeal, and was sentenced to a prison term of 2 1/313 to 7 years.   Defendant then moved pursuant to CPL 440.20 to set aside his sentence alleging that the Rockefeller Drug Law Reform Act (see L. 2004, ch. 738), which was enacted after he was arrested but before he was sentenced, entitled him to resentencing.   County Court denied the motion and this Court granted defendant permission to appeal.

The provisions of the Rockefeller Drug Law Reform Act were intended to apply only to criminal conduct committed on or after the Act's effective date (see People v. Zippo, 29 A.D.3d 1179, 814 N.Y.S.2d 812 [2006], lv. denied 7 N.Y.3d 852, 823 N.Y.S.2d 782, 857 N.E.2d 77 [2006];  People v. Milner, 28 A.D.3d 873, 874-875, 812 N.Y.S.2d 197 [2006];  People v. Walker, 26 A.D.3d 676, 677, 810 N.Y.S.2d 530 [2006] ).   As such, defendant's contention that he is entitled to a reduced determinate sentence is without merit.

ORDERED that the order is affirmed.

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