Opinion
2015/2001.
Decided August 14, 2006.
People, Yokasta Reinoiso, ADA, Charles J. Hynes, Brooklyn NY, Defendant.
Darryl WIlson, Pro Se Brocton NY.
Defendant Wilson, now serving an indeterminate sentence of five to ten years imprisonment at Lakeview Correctional Facility, for his May 7, 2001-plea of guilty to a class B felony, PL § 220.39 (Criminal Sale of a Controlled Substance in the in the Third Degree) moves: pursuant to CPL § 440.20, to set aside his sentence as invalid under the Drug Law Reform Act (DLRA), Laws of 2004, Chapter 738, §§ 20 and 36, (which added PL §§ 60.04, 70.70, and 70.71), and to resentence him to a determinate sentence to run concurrent with his two to four-years sentence for a class D felony conviction in Oneida County, not consecutive sentences; and, pursuant to CPL § 440.30, to be produced for a hearing to determine findings of fact on this motion.
The People oppose on the grounds that defendant is not entitled to be resentenced under DLRA and that defendant was actually sentenced to concurrent terms of incarceration.
The People are correct. Defendant's motion must be denied. DLRA's retroactive resentencing provisions apply only to class A-I and class A-II drug felonies. Further, defendant is now serving a sentence which is concurrent with the sentence imposed for his Oneida County conviction on March 27, 2002, for violation of PL § 170.10 (Forgery in the Second Degree), a class D felony. A hearing on defendant's instant motion is denied, pursuant to CPL § 440.30 (4) (a). There is no legal basis for the instant motion and thus there is no need to have defendant produced before the Court.
Background
Defendant Darryl Wilson, on March 7, 2001, using the alias "Darryl William," was arrested for selling a quantity of a controlled substance to an undercover officer, in the 88th Precinct, Brooklyn, New York. According to his rap sheet for this arrest, he has also been known as "Derrick Smith." There was also an outstanding September 7, 2000 warrant issued for defendant when he absconded from his parole of the sentence for his June 28, 1999 conviction, for violation of PL § 110/160.05 (Attempted Robbery in the Third Degree), a class E felony. Defendant has a prior record of having been adjudicated: a juvenile delinquent after a felony drug arrest; and, a youthful offender with a 1999 felony drug conviction. He was on probation for his Y.O. conviction when arrested and indicted in 1999 for the case that resulted in his parole violation.
In the instant matter, he was arraigned on March 9, 2001 on a felony complaint, charged with violation of: PL § 220.39 (Criminal Sale of a Controlled Substance in the Third Degree); PL § 220.16 (Criminal Possession of a Controlled Substance in the Third Degree); and, PL § 220.03 (Criminal Possession of a Controlled Substance in the Seventh Degree).
Thereafter, on May 7, 2001, defendant appeared before me in Part APN of Kings County Criminal Court, the Part dealing with unindicted narcotics felonies. He waived grand jury action and pled guilty to PL § 220.39, a class B felony, pursuant to Kings County Superior Court Information (SCI) #2015/2001, with a promised sentence of "Drug Treatment Alternative-to-Prison Program" (DTAP) or in the alternative, a prison sentence of five to ten years. According to the Kings County District Attorney's website, www.brooklynda.org/dtap/dtap, DTAP is a program "to divert prison-bound felony drug offenders to residential treatment programs."
On July 24, 2001, Defendant was released on his own recognizance. He left the courtroom before speaking to a drug program representative and a warrant for his arrest was ordered. Less than one month later, on August 22, 2001, he was arrested in Oneida County and then convicted on March 27, 2002 in Oneida County Court, for violating PL § 170.10, Case No. S02-026. He was sentenced to two to four years imprisonment.
On August 19, 2002, defendant was involuntarily returned to Part APN, Kings County Criminal Court, and remanded. The Hon. Sarah Krauss, on August 29, 2002, imposed my jail alternative condition to his May 7, 2001-plea. She sentenced defendant to an indeterminate sentence of five to ten years imprisonment under Kings County SCI #2015/2001, to run concurrent with his Oneida County two to four years sentence.
Discussion
Governor George Pataki, in his January 7, 2004 State of the State address to the Legislature proposed reforming the "Rockefeller Drug Laws," to reduce sentences and enhance drug treatment programs. The Legislature enacted Chapter 738 of the Laws of 2004, DRLA, to enact some of the proposed sentencing reforms. DRLA, except for some limited exceptions, according to § 41 (d-1) of DRLA "shall apply to crimes committed on or after the effective date thereto." § 36 of the legislation provided that felony drug offenders receive determinate sentences. Governor Pataki signed DRLA into law on December 14, 2004, effective January 13, 2005.
The limited exceptions for resentencing retroactivity, pursuant to DRLA § 23, provide that persons convicted of class A-I felony drug offenses prior to the effective date of the new law, January 13, 2005, may apply to be resentenced under the new PL § 70.71. Resentencing retroactivity, under PL § 70.71, was extended to persons convicted of class A-II drug felonies in the Laws of 2005, Chapter 643, effective October 29, 2005.
Defendant Wilson, convicted in the instant case of a Class B drug felony, not covered by the retroactivity exceptions of the statute, has applied to this Court for resentencing. The Legislature clearly provided that DRLA's retroactive resentencing provisions do not apply to those convicted of Classes B, C, D, and E drug felonies. In People v. Stephen, 7 Misc 3d 525, 528 (Sup Ct, Kings County 2005), the Court instructed that:
It is a fundamental canon of statutory construction that retroactive operation is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it.' (Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 584 [1998] [citations omitted]. Retroactivity should not be applied to nonprocedural statutes absent a plainly manifested legislative intent to that effect.' (People v. Oliver, 1 NY2d 152). The statute in question clearly states that it takes effect on January 13, 2005. Had the Legislature intended it to apply retroactively it could have unambiguously done so, as it did with the resentencing provision for A-I life sentences for felony drug convictions (ch 738, § 22, amending Penal Law § 220.21; ch 738, § 23).
When interpreting the meaning of a statute, this Court is guided by the Court of Appeals holding in People v. Finnegan, 85 NY2d 53, 58 (1995), cert denied 516 US 919 (1985), which states:
The governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words' used (People ex rel. Harris v. Sullivan, 74 NY2d 305, 309, citing Doctors Council v. New York City Employees' Retirement Sys., 71 NY2d 669, 675; Patrolmen's Benevolent Assn. v. City of New York, 41 NY2d 205, 208). Equally settled is the principle that courts are not to legislate under the guise of interpretation (see, People v. Heine, 9 NY2d 925, 929; see also, Bright Homes v. Wright, 8 NY2d 157, 162). It is clear that the ameliorative provisions of DRLA apply only to class A-I and class A-2 drug felonies. An ameliorative statute is applied retroactively unless there is specific statutory language demonstrating that it is applied only on a prospective basis. People v. Behlog, 74 NY2d 237, 240 (1989); People v. Oliver, supra at 157. Defendant's arrest and conviction in 2001 for a class B felony took place years before the January 13, 2005-effective date of DRLA. There is no statutory language in DRLA that applies to defendant Wilson's application for resentencing under DRLA for a person convicted of a class B drug felony.
Numerous recent decisions in all four Appellate Division Departments agree that persons convicted of class B drug felonies, similar to Defendant Wilson, are not entitled to be resentenced retroactively under DRLA. In April of this year, the Appellate Division, Second Department, in People v. Mann, 28 AD3d 791, 792 (2006), stated that:
The DLRA established a new sentencing structure for drug offenses ( see L 2004, ch 738, §§ 20, 36 [adding Penal Law §§ 60.04, 70.70 and 70.71]), and provides that the new structure shall apply to crimes committed on or after the effective date of the statute's relevant sections ( see L 2004, ch 738, § 41 [d-1]). Thus, the DLRA, while ameliorative in nature, expressly states that its sentencing provisions are to have only prospective application [citations omitted]. Although the DLRA and subsequent legislation contain resentencing provisions which, in effect, permit the retroactive application of the new sentencing structure, those provisions apply only to defendants convicted of class A-I felonies ( see L 2004, ch 738, § 23) or class A-II felonies ( see L 2005, ch 643).
People v. Savage, 29 AD3d 1022 (2nd Dept 2006), decided on May 30, 2006, involved a defendant, like Mr. Wilson in the instant case, convicted of a class B drug felony prior to the effective date of DRLA. Defendant Savage argued that he was entitled to resentencing pursuant to DRLA. The Court held, at 1024, that "[t]he defendant's contention that he is entitled to resentencing pursuant to the Drug Law Reform Act of 2004 (L 2004, ch 738, hereinafter the DLRA) and subsequent legislation is without merit." Further, at 1024, the Court instructed that:
the resentencing provisions are inapplicable here as the defendant was convicted of eight class B felonies . . . and the changes in the sentencing ranges applicable to class B felonies do not apply to the defendant's crimes where commission, conviction, and sentence all occurred before the effective dates of the relevant legislation.
See People v. Canto, ___ AD3d ___, 2006 NY Slip Op 05892 (1st Dept July 20, 2006); People v. Cappella, ___ AD3d ___, 2006 NY Slip Op 04764 (1st Dept June 13, 2006); People v. Butts, ___ AD3d ___, 2006 NY Slip Op 04563 (4th Dept June 9, 2006); People v. Zippo, 29 AD3d 1179 (3rd Dept 2006); People v. Abreu, 29 AD3d 336 (1st Dept 2006); People v. Grice, 29 AD3d 819 (2nd Dept 2006); People v. Dickerson, 28 AD3d 787 (2nd Dept 2006); People v. McCray, 27 AD3d 486 (2nd Dept 2006); People v. Feili, 27 AD3d 318 (1st Dept 2006) lv denied 6 NY3d 894 (2006); People v. Walker, 26 AD3d 676 (3rd Dept 2006); People v. Torres, 26 AD3d 398 (2nd Dept 2006); People v. Goode, 25 AD3d 723 (2nd Dept 2006); People v. Nelson, 21AD3d 861 (1st Dept 2005) lv granted 6NY3d 757 (2005).
The facts in People v. Milner, 28 AD3d 873 (3rd Dept 2006) are strikingly similar to those in the instant case. In September 2003, Defendant Milner pled guilty in Broome County Court to violating PL § 220.39, after waiving grand jury indictment and agreeing to be prosecuted by a SCI. Instead of DTAP he was sentenced to a treatment program called "Road to Recovery Program" with a jail alternative of from four and one-half years to nine years to twelve and one-half years to twenty-five years. Subsequently he absconded from the program and a warrant was issued for his arrest. After his return on the warrant he was sentenced to the jail alternative of four and one-half years to nine years. The Court, at 874, noted that
[T]he record reveals that defendant failed to abide by an explicit condition of his plea agreement, therefore, County Court was free to impose a sentence in accordance with its terms . . . Furthermore, although defendant claims that County Court erred in not reducing his sentence in accordance with the Drug Law Reform Act, we note that his crimes were committed prior to that law's effective date and, therefore, said statute was not applicable ( see People v. Walker, 26 AD3d 676 [2006]).
Just as in People v. Milner, supra, the Court finds that the ameliorative provisions of DRLA do not apply to Defendant Wilson. Since he was convicted of a class B drug felony several years prior to the passage of DRLA, defendant is not eligible for the retroactive resentencing provisions of DRLA. His indeterminate sentence of five to ten years imprisonment for his PL § 220.39 plea to Kings County SCI #2015/2001 is valid.
Defendant received his Kings County prison sentence concurrent with his two to four-years sentence for his Oneida County conviction for violation of PL § 170.10. Defendant is mistaken in alleging that the sentences are consecutive.
A hearing on defendant's motion, pursuant to CPL § 440.30 (4) (a), is denied. As there is no legal basis to resentence defendant, there is sufficient information presented for this Court to have determined this decision and order upon the papers submitted. CPL § 440.30 (4) (a) states:
4. Upon considering the merits of the motion, the court may deny it without conducting a hearing if:
(a) The moving papers do not allege any ground constituting legal basis for the motion . . .
In People v. Horan, 290 AD2d 880 (3rd Dept 2002), the Court in affirming defendant's conviction for Murder in the Second Degree by a Greene County Court jury, held that the trial court was not required to conduct a hearing in reaching its decision in denying defendant's motion to vacate the judgment and his indeterminate sentence of 25 years to life imprisonment. The Court held, at 886:
we find no error in County Court's denial of defendant's CPL article 440 motion without a hearing. It appears from County Court's decision that it engaged in a thorough and well-reasoned analysis of defendant's motion and properly concluded in the first instance that it could be decided without a hearing ( see CPL 440.30 [1]; People v. Satterfield, 66 NY2d 796). The motion papers and trial record provided an ample basis for County Court's determination of the merits of defendant's motion without a hearing, and we find no reason to disturb that decision which is supported by the record. See People v. Parler, 10 AD2d 991 (2nd Dept 1960).
Conclusion
Accordingly, it is
ORDERED, that the motion of defendant Wilson: pursuant to CPL § 440.20, to set aside his Kings County sentence for a class B drug felony conviction as invalid under the Drug Law Reform Act (DLRA), and resentence him to a determinate sentence to run concurrent with his two to four-years sentence for a class D felony conviction in Oneida County; and, pursuant to CPL § 440.30, to be produced for a hearing to determine findings of fact on this motion; is denied in its entirety.
This constitutes the Decision and Order of the Court.