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The court concludes that it is without authority to impose any sentence


A man stands convicted from criminal possession of a controlled substance in the first degree, a class A-I felony. In that, he knowingly and unlawfully possessed one or more preparations, compounds, mixtures or substances containing a narcotic drug, namely, cocaine, and said preparations, compounds, mixtures or substances were of an aggregate weight of four ounces or more. In particular, the man was in possession of over five ounces of crack-cocaine.

Subsequently, the man was sentenced to an indeterminate period of imprisonment of fifteen years to life.

The man then filed a motion on notice for an order vacating his sentence. He additionally requests the court to reduce his conviction and to re-sentence him as a predicate violence felony offender IV to a determinate sentence of eight years’ imprisonment with five years’ post release supervision.

Sources revealed that the prosecution agrees that the man is eligible for his request and re-sentencing, but opposes his motion for a downward amendment based on the weight of the drug. The prosecution further recognizes that, if the man will be tried and convicted, his possession would fall below the eight-ounce minimum that is necessary for an A-I felony conviction, and would meet only the legal minimum to support an A-II felony conviction. However, the complainant urges the court not to apply the act retroactively.

Based on records, the drug law act amends the correction law, criminal procedure law, penal law, and executive law in relation to controlled substance convictions and sentences, thereby ameliorating the impact of the severity of the drug laws.

In addition, the drug law reform act’s sentencing amendments apply to imprisoned persons convicted of class A-I felonies and sentenced thereon to an indeterminate period of imprisonment with a minimum of not less than fifteen years’ imprisonment. The act permit the court, upon consideration of any facts and circumstances relevant to the imposition of a new sentence as well as the man’s institutional record of confinement, to re-sentence and qualifying the man to a fair and just determinate sentence.

The man, who is currently in prison on an A-I felony drug conviction and serving a fifteen years to life sentence, had demonstrated exemplary prison behavior and utilized his time in prison constructively. As a result, all parties agree that he should obtain the ameliorative benefit of the new legislation and that the imposition of a determinate sentence would be fair and just, and consistent with the intended purpose of the amendments.

However, the second aim of the man’s application requires some argument regarding the distinction between amelioration and retroactivity. He was once convicted of burglary.

In addition to amending the sentencing structure and reducing sentences imposed upon offenses, the act also redefines the penal law in which the criminal possession of a controlled substance in the first degree will increase the weight requirement from four ounces to eight or more ounces of a narcotic drug, and the criminal possession of a controlled substance in the second degree will increase the weight from two ounces to four ounces or more for conviction there under.

The court stated that the man is correct in his assertion that if he were tried based on evidence that he knowingly and unlawfully possessed approximately five ounces of cocaine he would only be guilty of criminal possession of a controlled substance in the second degree, a class A-II felony. The man explained that he is entitled to the full ameliorative impact of the legislation and urges the court to retroactively apply the portion of the ameliorative legislation to his case and to re-classify and re-sentence him as an A-II felony drug offender. He alleges that the court’s authority for the matter can be found in the act itself, prior court of appeals decisions, and constitutional principles of fairness.

The man admitted that there is no illegality upon which to challenge the underlying conviction, and contrary his claim, the court finds no authority in the drug act for such re-sentencing. Moreover, one of the sections expressly prohibits a court from re-examining the underlying conviction.

The man’s next contention, in which it addresses to the amelioration and retroactivity that entitle him to the reduction, is further without merit.

Furthermore, no one argues that in certain circumstances, pursuant to the doctrine of amelioration, such revision could properly apply retroactively. However, merely because a statue has an ameliorative impact does not result in its retroactive application. The principle of amelioration and the rules of retroactivity are not one and the same.

Based on records, the increase in the narcotic preparation weight requirements for criminal possession of a controlled substance in the first and second degrees is clearly an ameliorative change in the law. However, the court of appeals has held that amelioration does not apply to final the felon decision. The man is only entitled to the benefit of such an ameliorative change where, notwithstanding his/her conviction under the old ruling, he/she is yet to be sentenced thereon.

The man however did not deny that at the time of the motion he was in a final decision posture. But, he urges the court to find that by virtue of the court’s agreement to vacate his earlier sentence and re-sentence him pursuant to the new, less strict determinate sentencing structure, he now is no longer subject to a final decision.

Meanwhile, the prosecution explained that the issue, having recently been resolved by the appellate division in the previous case, is now settled and binding on the court. The offender in the previous case was in the same situation as the man, namely convicted of first-degree drug possession under the former statute and seeking reduction of his conviction to second-degree possession and re-sentencing thereon. The position was rejected by the first department in the previous case, which the court found that the offender was not entitled to such a second re-sentencing, in addition to the re-sentencing afforded him under the act.

The offender, however, contrarily contends that until the second department speaks on the issue, the court may hold contrary to the first department standards.

In the previous case cited, it emanates from the appellate division and there is no case law from the second department addressing the issue and the court of appeals has yet to speak on the matter. As a result, the court is bound by the holding in the case.

Consequently, the court concludes that it is without authority to impose any sentence on the man other than one applicable to a conviction for an A-I drug felony. For a class A-I felony drug offender with a predicate violent offense, the new determinate sentencing range is a minimum term of fifteen years’ and a maximum of thirty years’ imprisonment.

Further, both sides are in agreement that the man should be re-sentenced to the minimum possible prison term. Given the man’s exemplary behavior in prison thus far, the court agrees in the recommendation that the man must be re-sentenced to a determinate term of fifteen years’ imprisonment, together with five years’ post release supervision.

The court also cited two previous related matter and found that the man’s other arguments to be unavailing is without merit.

Appropriately, the matter is postponed to a mutually convenient date for further proceedings in accordance with the law.

Whenever you want an exceptional legal assistance to defend your legal issues in the courtroom, you can seek help from the Kings County Criminal Attorney. Also, you can have the Kings County Drug Crime Lawyer or the Kings County Cocaine Possession Attorney at Stephen Bilkis and Associates to assist you explore your legal options.

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