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Chapter 785 of the Session Law


Defendant was charged in 1974 with sale and possession of methadone, a Class A–II felony at the time of his indictment. Upon motion before the Court, the charge was reduced to a Class A–III felony.

A Queens County Criminal attorney said that prior to trial, the law respecting possession and sale of methadone was changed to lessen the severe penalties attached to such crimes. The legislature specifically provided for retroactive application of the new Penal Law sections. The court, over defendant’s objection, amended the accusatory instrument to reflect the newly instituted regulatory scheme. Thereafter, defendant was tried and convicted of criminal sale of a controlled substance in the fifth degree, a Class C felony under the amended section 220.34 of the Penal Law.

Defendant is a second felony offender. He claims that due to his predicate felony status, sentencing, pursuant to the recently enacted Penal Law provisions, might result in the imposition of a longer minimum sentence. This, he contends, would thus constitute harsher punishment in violation of the prohibition against ex post facto legislation. The People contend that the Penal Law revisions were designed to ameliorate the severe penalties imposed under the ‘Rockefeller Drug Law,’ and, consequently, would not be an unconstitutional retroactive application of the law.

The instant motion presents a novel issue: whether or not a sentence of three to six years is more severe than an indeterminate sentence of life imprisonment with a possible minimum sentence of one year.

Article 1, section 9, clause 3 of the U.S. Constitution provides: ‘No Bill of Attainder or ex post facto Law shall be passed.’ A statute is not invalid under the Federal Constitution merely because it is retroactive, set down the specific types of laws which fall within the constitutional restriction on ex post facto legislation.

A law, however, is not ex post facto which mollifies the rigor of the criminal law. Thus, if a statute reduces punishment for a particular crime, then the lesser penalty may be meted out in all cases decided after the effective date of the enactment, even though the underlying act occurred before that date.

The ex post facto clause looks to the standard of punishment prescribed by a statute rather than to the sentence actually imposed and an increase in the possible penalty may be a violation of the clause regardless of the length of the sentence actually imposed, where a change in the statute required imposition of statutory maximum term on all indeterminate sentences, where formerly court had discretion to set a term up to the maximum term allowed by statute, was held unconstitutional, the court, noted that ‘one’s punishment is not to be strictly equated with one’s sentence, but rather is to be considered in the broadest and most humane terms.’ Consequently a ‘legislative mitigation’ of the penalty for a particular crime represents a judgment that the lesser penalty or different treatment is sufficient to meet the legitimate ends of the criminal law.

In 1975 the legislature, in response to criticism that the Penal Law provisions respecting the possession and sale of methadone were disproportionately severe because of the aggregate weight standard, enacted Chapter 785 of the Session Law. Chapter 785 revised the Penal Law by reclassifying methadone and restructuring methadone offenses.

For purposes of the criminal law, methadone is no longer considered a narcotic drug and is no longer subject to the aggregate weight standard for determining the grade of offense. The legislature deemed it fairer to measure crimes involving methadone on a pure weight basis. Chapter 786, Session Law provided that the amendments to the Penal Law in Chapter 785 ‘govern the construction of and punishment for offenses committed prior to its effective date in pending cases where sentence is imposed upon or after the effective date.’ Consequently, it is clear that it was the plan of the legislature to ameliorate the harsh penalties imposed under the old statute and to extend the benefits of the new law to those who committed methadone drug offenses prior to the effective date of the new legislation.

In New York, indeterminate sentences have long been regarded as a sentence for the maximum term. This view is in accord with the approach taken in other jurisdictions. The cases go on the theory that when the sentence is for an indefinite term and the court imposes a maximum punishment, then the prisoner in contemplation of that law is committed for the full term, but may secure release at an earlier date if, by his deportment and good conduct, he proves himself worthy of the clemency which it is the policy of indeterminate sentence laws to extend him. Thus the maximum sentence is viewed as ‘the only portion of the sentence which has legal validity, and the minimum sentence is merely an administrative notice by the court to the executive department, calling attention to the legislative policy that when a man’s so-called minimum is about to expire, the question of grace and mercy ought to be considered and the propriety of granting a qualified pardon be determined.’

In this instance the defendant, if sentenced for a C felony as a second-felony offender, could receive as a maximum sentence 6 to 15 years; whereas if he were sentenced under the old statute, a mandatory maximum sentence of life imprisonment would ensue. Thus his maximum exposure is, if anything, reduced under the new statutory scheme.

Moreover, in cases where the minimum sentence under an indeterminate sentence structure may be increased because of legislative amendments and the maximum sentence remains constant, the courts have uniformly held that such changes do not increase punishment so as to violate the constitutional protections embodied in the ex post facto clause. In fact, as in another case, the court herein has discretion in setting minimum punishment, either higher or lower, under the new law than the minimum sentence permitted under the prior statute. The court in the said case said that when the minimum sentence could be less than previously imposed, the minimum criminal sentence imposed would not be considered a greater punishment.

Furthermore, the imposition of an indeterminate sentence when the maximum is life imprisonment has been viewed as more severe than a definite sentence. In this instance, an indefinite sentence for a shorter term may be regarded, when juxtaposed with a maximum sentence of life, as a less harsh punishment. For, as the court in Buckley observed, pursuant to a sentence of life imprisonment ‘the offender must, so long as he lives, be under the control of the Board of Parole, whose power of incarceration ceases only with the death of the ‘.

Accordingly, since the statute does not increase the punishment to be imposed and in fact is designed to ameliorate our prior strict sentencing structure, the retroactive use of the new Penal Law provisions does not appear to be an unconstitutional application. Defendant’s motion to be sentenced under the old Penal Law is, therefore, denied.

It is a basic principle that no person shall be punished by an ex-post facto law. Here in Stephen Bilkis and Associates, our Queens County Criminal attorneys will help those who will be prosecuted for ex-post facto laws and will represent them in Court. If a person was apprehended for drug possession through instigation or frame-up, you can consult our Queens County Drug lawyers in order to know what are the remedies under the law which you will avail.

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