A New York Criminal Lawyer said on 15 December 1981, defendant was convicted of several drug crimes (which includes marijuana possession, heroin possession, etc.), viz: Criminal Sale of a Controlled Substance in the First Degree, Conspiracy in the Second Degree and Criminal Use of Drug Paraphernalia in the Second Degree. Defendant was sentenced to various terms of imprisonment.
The issue here is whether or not the new statute which was made affective after the commission of the crime but before trial should be applied instead of the law existing at the time of the commission of the crime.
The court finds that the mandatory sentence of 15 to life imposed for the conviction of Criminal Sale of a Controlled Substance in the First Degree (drug possession) was required by criminal law. The proof, although circumstantial, was sufficient to establish defendant’s accessorial liability with respect to the drug selling operation conducted by defendant’s co-defendant. The court is troubled by the draconian sentence; nonetheless, it cannot, in good conscience, say that the case is a rare one which on its particular facts may lead to the opinion that the sentencing statute has been unconstitutionally applied.
Here, while the proof lends itself to the conclusion that defendant, who controlled entrance into the apartment, was a greeter, receptionist, general factotum and bodyguard, there is no reasonable doubt that his function was to protect the operation by excluding those who might seek to disrupt it. Thus, while he was, in the eyes of the law, an accessory to the crime and is equally guilty, his participation in the criminal activity was markedly less than that of the principal actor.
In reviewing a sentence, a Long Island Criminal Lawyer said the court does not pass on the wisdom of the Legislature’s acts. It holds only that, because of the Legislature’s rational view of the gravity of the offenses, the danger posed by the offenders, and the penological purposes to be served, the punishment imposed for these crimes in the present state of man’s knowledge was not grossly disproportionate or cruel and unusual in the constitutional sense. Thus, under the circumstances, the court cannot say that the sentencing statute was unconstitutionally applied.
The court is not unaware of the general rule that where a statute reduces the punishment which may be imposed for a crime committed before the statute was enacted but for which sentence is imposed after the statutory amelioration, the ameliorative statute, ordinarily vests the court with the discretionary power to impose the lesser punishment provided by the new law. The reduction of the punishment distinguishes it from an ex post facto law which is constitutionally barred and which increases the punishment for a crime committed before the statute was enacted or makes criminal an act committed before its enactment.
Furthermore, the court is free to apply that rule in the case at bar. The statute became effective only after the defendant had committed the crime and after he had been arrested and indicted, but before he had been tried, convicted and sentenced. However, as the law provides: “the provisions do not apply to or govern the construction of and punishment for any offense committed prior to the effective date of the act, or the construction and application of any defense to a prosecution for such an offense; that such offense must be construed and punished according to the provision of law existing at the time of its commission in the same manner as if the act had not been enacted”. Thus, the court is enjoined by law from imposing the lesser sentence permitted by the amended statute. Moreover, the statute did more than just alter the punishment for the crime. It redefined the crime by increasing the weight of the narcotic drug sold necessary to constitute the sale.
In sum, the defendant’s conviction and sentence is affirmed.
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