Panel Holds Drug Law Reforms Not Retroactive

Tom Perrotta

10-04-2005


In the first appellate ruling on reforms to the Rockefeller Drug Laws, the Appellate Division, First Department, has concluded that lenient sentences available under the new laws are not retroactive.

The ruling was a victory for the Manhattan District Attorney's Office and other city prosecutors, who have argued that the state Legislature specifically limited the law's application to crimes committed after Jan. 13, 2005, the effective date of the new law.

The issue has divided trial courts, some of which have applied the "amelioration doctrine" out of fairness to defendants whose crimes were committed prior to the date but who had yet to be sentenced.

The First Department, however, said those decisions were misplaced because of specific language in the new laws. (The decision was published on page 26 of yesterday's Law Journal.)

"We agree with the reasoning of those trial courts that have refused to apply the amelioration doctrine," the unanimous, unsigned court wrote in People v. Nelson, 6593. "The Legislature directly addressed the retroactivity of its ameliorative sentencing provisions by stating that the provisions at issue shall take effect 30 days after having been signed into law."

Under the reforms, those convicted of drug crimes are eligible for determinate sentences that are often shorter than the indeterminate sentences of the previous laws. While the new laws allow defendants serving life sentences for the most serious drug crimes to apply for a reduction, many of its other reductions — especially for lower-level defendants — seemingly were aimed only at future convictions.

Several judges thought the language of the reforms was too vague. One Manhattan judge, Acting Supreme Court Justice William A. Wetzel, even criticized the office of Manhattan District Attorney Robert M. Morgenthau for asking for harsher sentences based on the date of a crime, considering that the office had pushed for amendments to the harsh Rockefeller laws (NYLJ, Feb. 1, 2005).

In issuing a reduced sentence, Justice Wetzel, ruling in People v. Estela (NYLJ Feb. 3, 2005) cited People v. Behlog, 74 NY2d 237 (1990), which said that lesser penalties should apply to all cases decided after a law was amended, no matter the date of the crime.

More important, he also rejected arguments that he should follow the First Department's 1983 holding in People v. Festo, 96 Ad2d 765, which did not apply a reduced sentence to a crime because of explicit language in a new statute. The Rockefeller reforms, the judge said, were not explicit enough and should be considered under the "amelioration doctrine" described in Behlog.

Other judges agreed with Justice Wetzel's reasoning, though even more sided with prosecutors (NYLJ, March 15, 2005). One judge in the latter camp, Acting Supreme Court Justice Bonnie Wittner, was affirmed last week by the First Department in its first opinion on the issue.

The appeals court said that the defendant in Justice Wittner's case, Michael Nelson, was properly sentenced to 2 to 4 years upon his plea of guilty to criminal sale of a controlled substance in the fifth degree as a second felony offender. Mr. Nelson was not sentenced until Feb. 4, 2005, a few weeks after the reforms went into effect.

Though the appeals court made no mention of Justice Wetzel's ruling, it rejected his interpretation of Festo, finding that the language of the new Rockefeller laws was just as explicit as that in Festo.

"We conclude that this language expresses an intent to negate the amelioration doctrine," the appeals court wrote. "Furthermore, the new law includes a number of ameliorative provisions that benefit defendants who were sentenced under the old laws."

Mark Dwyer, chief of the appeals division in the Manhattan District Attorney's Office, said, "We think that plainly reflects the Legislature's intent."

Claudia S. Trupp of the Center for Appellate Litigation, which represented Mr. Nelson, could not be reached for comment.

Justices David Friedman, Joseph P. Sullivan, Eugene L. Nardelli, Luis A. Gonzalez and John W. Sweeny concurred on the ruling.

— Tom Perrotta can be reached at tperrotta@alm.com.