On Dec. 14, 2004 Governor George Pataki signed drug law legislation, The Rockefeller Drug Law Reform bill, which, with limited exceptions, became effective Jan. 13, 2005. See, A.11895; 2004 NY Laws 738.

This legislation makes several significant changes that will affect sentencing in drug cases in the future. Other aspects of the legislation will affect those already serving sentences for drug convictions.

This article highlights the most significant changes.

Sentencing Structure Changes

Under the old law, all prison sentences for drug offenses were indeterminate. See, PL �70.00. Under the new law, all prison sentences for drug felonies will be determinate sentences with an additional period of post-release supervision, similar to the existing sentence structure for violent felony offenses.

Two new Penal Law sections have been added, PL �70.70 and �70.71, which set forth the new sentencing scheme. The new law creates three categories of determinate sentence and post-release supervision ranges, depending on whether the defendant has: (1) no prior felony convictions; (2) only non-violent felony priors; (3) any violent felony prior. The new sentencing ranges have the effect of reducing the minimum and maximum prison terms for drug offenses committed by both first offenders and non-violent predicate felony offenders while increasing the minimum prison terms for violent predicate felony drug offenders. The new determinate sentences also carry various periods of post-release supervision depending on the felony level and the defendant’s prior record.

The new law determinate sentence ranges and periods of post-release supervision (PRS) are set forth in Table 1 on page 7 of today’s print edition of the New York Law Journal. Note, these are all determinate sentences and must be set in whole or half years.

The new law establishes a 25-year probationary sentence for Class B first felony drug offenders who provide “material assistance” and retains lifetime probation for Class A-II and Class B (predicate) drug offenders who provide “material assistance.”

The Class B felony of Criminal Sale Near School Grounds (PL �220.44) carries a minimum of two years for a first felony offender.

Class C, D, E first-felony drug offenders are eligible for a definite sentence of one year or less in a local jail without PRS or a five-year probationary sentence in lieu of a prison sentence if a determinate sentence is found “unduly harsh.”

The new law retains the sentencing options of parole supervision for non-violent predicate drug offenders charged with Class D or E felonies, commonly referred to as “Willard.” See, CPL �410.91.

“Shock Incarceration” is permitted for Class A-II and Class B first offenders and Class C, D or E first offenders and non-violent predicates who have not previously served a determinate or indeterminate sentence and have less than three years to conditional release and who are between the ages of 16 and 40. See, Correction Law �865.

It remains to be seen whether the reduction in the mandatory minimum prison sentence for non-violent predicate B felonies (applicable to the common street-level seller) from 4-1/2 to 9 years to 3-1/2 years, will reduce the significant number of offenders in that category who are now placed with the consent of the prosecutor into community-based drug treatment programs. The increased availability of prison-based drug treatment and potentially shorter prison terms may prompt a re-evaluation of existing policies in this area.

The new law specifically states that the determinate sentencing scheme is applicable to crimes committed on or after its effective date, Jan. 13, 2005. Defendants may argue, nevertheless, that because this legislation is an “ameliorative change reducing the punishment,” it should be applied retroactively. See, People v. Behlog, 74 NY2d 237 (1989) (applying retroactively a higher monetary threshold to the crime of grand larceny because, “the Legislature is necessarily presumed � absent some evidence to the contrary � to have determined that the lesser penalty sufficiently serves the legitimate demands of the criminal law.”) On the other hand, the mandatory minimum sentence for some defendants will increase under the new law. In those cases, defendants would not benefit from retroactive application. The issue of retroactivity, therefore, may have to be judicially resolved. 1

� Changes in Class A Felony Controlled-Substance Offenses. Although Class A drug felonies are far rarer than street-level sales, the changes to the Class A felony drug laws have been the more widely publicized. See, PL �70.71. Threshold minimum weights for Class A-I and A-II Possession have been doubled to 8 and 4 ounces respectively. See, PL ��220.21(1), and 220.18(1). This aspect of the legislation was made effective “immediately” upon being signed by the governor on Dec. 14, 2004. Because this ameliorative change applies to the entire class of potential offenders, there is a stronger argument under Behlog that it should apply retroactively to pre-effective date cases.

The minimum weights for Class A felony sales, however, remain unchanged at 2 ounces for A-I and one-half ounce for A-II felonies.

Plea-bargaining restrictions on Class A-I felonies have also been eased. Defendants charged with both A-I and A-II drug felonies may with the consent of the prosecutor now plea down to a Class B felony. See, CPL 220.10(5)(a)(ii).

The new law provides that defendants currently serving life sentences for A-I felony possession or sale, numbering approximately 400, may apply before the original sentencing court for re-sentencing to a determinate sentence under �70.71 of the new law.

Sentencing would be at the new A-I level, even in cases of A-I possession where the weight of the drugs was less than eight ounces. Nevertheless, the amount possessed may be considered by the re-sentencing court in determining what, if any, new A-I sentence should be imposed.

The new law makes no provision for a defendant at re-sentence to re-litigate the weight of the drugs and argue that if the weight was less than the new A-I possession level of eight ounces, a new A-II level sentence should instead be imposed. If the weight issue were allowed to be contested and if the prior proceedings did not include a specific jury finding or plea allocution that the weight was at least eight ounces, the defendant could also argue the new A-I possession weight must be proven to a jury beyond a reasonable doubt. See, Apprendi v. New Jersey, 530 US 466 (2000).

If the defendant has a prior felony conviction, a formal determination of that fact by the court at re-sentencing will have to be made, because this finding was not required under the old Class A felony sentence.

A unique procedure is established to insure that a defendant does not receive a harsher sentence upon being re-sentenced. After hearing from both sides, the court must inform the defendant of the determinate sentence it would impose. The defendant is given the option to either accept or reject the offered sentence. If dissatisfied, the defendant may appeal from the court’s offer without having to first accept the sentence, or the defendant may accept the new sentence and also appeal. An appeal would be on the grounds that the proposed sentence or the actual sentence imposed was “harsh or excessive” or “unauthorized as a matter of law.” Obtaining a waiver of appeal will no doubt become part of any negotiations concerning the new sentence.

Alternatively, the court may decline to re-sentence the defendant if it finds substantial justice dictates that the application should be denied. Defendants may also appeal this denial.

Any order issued by a court concerning a re-sentence application must include written findings of fact and the reasons for such order.

� Increased Discretion Given to Court Regarding Sentencing Options. The new legislation also gives the court the authority to direct, where before it could only “recommend,” prison-based drug treatment if a defendant is otherwise “eligible” in accordance with the Correction Law.

The Department of Correction has a Comprehensive Alcohol and Substance Abuse Treatment Program (CASAT) now containing 2,550 beds. Non-violent offenders under the old law became CASAT-eligible when they were within two years of parole eligibility or conditional release eligibility. After six months of prison-based treatment, inmates would become eligible for community-based treatment for an additional 18 months.

The new law accelerates by six months CASAT eligibility for inmates sentenced under both the new and old law, except for Class B second-felony drug offenders, who must serve a minimum of 18 months prior to becoming eligible for CASAT. Because CASAT space is limited, an unknown factor is the waiting time that may be necessary to place an inmate in CASAT.

Upon receipt by the prison, some defendants may already have accumulated enough jail time to be immediately eligible to enter CASAT for six months of treatment and thereafter be eligible for conditional release to an outside drug treatment provider. Prison-based treatment terminates, even if not completed, upon the defendant’s conditional release date.

Departures from mandatory prison minimums as it relates to first offenders remains within the discretion of the court on C, D and E felony drug cases. In those cases, the court can impose either a definite sentence of one year or less or five-years probation upon a finding that a determinate or indeterminate upstate prison sentence would be “unduly harsh.” Also, Youthful Offender treatment continues to remain an option as permitted by CPL �720.10.

� Earlier Release and Earlier Termination of Parole. In an effort to reduce the discrepancies between sentences for old and new law cases, the new law also makes changes in calculating eligibility for early release for old-law sentences. Therefore, these changes should be taken into account when comparing sentences under the old law and new law in order to determine whether a particular sentence is equitable, or when negotiating guilty pleas or re-sentencing defendants who have violated their conditions of probation or community-based drug treatment programs.

Drug offenders serving indeterminate sentences may receive a one-third “good time” to be credited against the maximum term. See, Correction Law �803(1)(b). Additionally, under the old law, an inmate could receive a one-sixth “merit time” credit off the minimum (one-third “merit time” is granted for A-I felonies) by completing certain prison programs such as earning a GED, performing community service on a work crew for 400 hours, earning a vocational trade certificate, or completing a drug program. See, Correction Law �803(1)(d). Under the new law, incarcerated defendants serving old-law indeterminate sentences on drug offenses (other than A-I drug felonies) will be eligible to earn an additional one-sixth “merit time” credit for a maximum credit of up to one-third off the minimum sentence by completing a second prison program (“double merit time”).

Under a determinate sentence, both “good time” and “merit time” come off the single term. “Merit time” and “good time” for new law sentences are each one-seventh of the sentence. Therefore, defendants sentenced under the new law would be eligible to receive a total of two-sevenths off the new law sentence.

These computations under the new law narrow the difference between prison time served on old-law and new-law sentences for the same crime.

Finally, but not without significance, parole terms for drug sentences under the old law have also been shortened. Under the new law, parole on indeterminate drug sentences would be terminated in all cases after two years of unrevoked parole (or three years on Class A felony drug offenses). This change will drastically reduce the parole time of many defendants sentenced under the old law. This is another effort to bring sentences under the old law more in line with new-law sentences, which have relatively short post-release supervision periods.

Joel M. Goldberg is Acting Justice of the Supreme Court of Kings County and Ernest M. Hambrock is principal court attorney to Judge Goldberg.

Endnote:

1. Since this article was submitted for publication, most trial level courts have held the statute not to be retroactive. The issue has yet to be resolved on appeal. For articles discussing the cases that have held the statute to be retroactive see the New York Law Journal, March 15, 2005, p. 1, col. 4 and Feb. 4, 2005, p. 1, col. 3.