[*1]
People v Payne
2005 NY Slip Op 50046(U)
Decided on January 27, 2005
Supreme Court, Queens County
Rotker, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on January 27, 2005
Supreme Court, Queens County


THE PEOPLE OF THE STATE OF NEW YORK

against

LEMBERNSKI PAYNE, Defendant.




N11098-01

Seymour Rotker, J.

By motion dated December 27, 2004, defendant seeks an order of the court to reduce his sentence pursuant to the "Reformed Rockefeller Drug Law." Defendant argues that his current sentence of from six years to life for this conviction is within the new statutory sentencing guidelines and thus, he is entitled to such reduction.

In response, the People have filed an affirmation in opposition dated, January 14, 2005, whereby they assert that defendant's motion to reduce his sentence should be denied in its entirety. The People claim that defendant is not entitled to revised sentencing for felony drug offenders as set forth in the new law.

Specifically, the People argue that the statute does not provide for retroactive relief for convictions of A-II felony offenses like the one received by defendant. Moreover, the prosecutor asserts that defendant's conviction for second degree sale of a controlled substance is not affected by the statutory change. Furthermore, the People argue that defendant's conviction was final before the statutory change became effective. The People contend that the change to sentences for A-II felony convictions only apples to crimes committed after the effective date of the statute.[FN1]

For the reasons stated herein, defendant's motion is denied.

[*2]FACTS/PROCEDURAL HISTORY

On or about October 16, 2001, a twenty-one count indictment was filed with the court charging defendant inter alia with the crimes of Criminal Sale of a Controlled Substance in the Second Degree (P.L. 220.41[1]).

Defendant pled guilty to one count of Criminal Sale of a Controlled Substance in the Second Degree on August 8, 2002, in full satisfaction of the indictment. He was sentenced to a term of incarceration of from six years to life on September 12, 2002. At the time of his plea, defendant executed a waiver of his right to appeal.[FN2]

As more fully explained in the District Attorney's opposition, the underlying charges stemmed from numerous alleged sales of cocaine by defendant to undercover police officers on approximately five separate occasions in the year 2001.

DECISION

Initially, pursuant to Chapter 738 of the Laws of 2004 defendant is not entitled to the demanded relief. Defendant was convicted of a class A-II felony. The new statute provides that a person:

convicted of a class A-I felony offense defined in article 220 of the penal law which was committed prior to the effective date of this section, and sentenced thereon to an indeterminate term of imprisonment with a minimum period not less than fifteen
years . . . may, upon notice to the appropriate district attorney, apply to be resentenced in accordance with section 70.71 of the penal law in the court which imposed the original sentence.


See L. 2004 738 §23. Since defendant was convicted of a class A-II, and not an A-I felony, and was sentenced to a term of from six years to life, the statute is also inapplicable to defendant's case.[FN3] [*3]

Accordingly, defendant's motion is denied.

Kew Gardens, New York

Dated: January 27, 2005



SEYMOUR ROTKER


JUSTICE SUPREME COURT
Footnotes


Footnote 1:In any event, the People also assert that even if the new sentencing guidelines were applicable to defendant's conviction, which they are not, defendant would be a "second drug felony offender" pursuant to the statute as a result of his prior conviction for criminal possession of a weapon; thus, his minimum sentence would be a determinate six years.

Footnote 2:At the time of his plea, defendant also admitted a prior felony conviction for Attempted Criminal Possession of a Weapon in the Third Degree, which occurred in Nassau County and for which he received a sentence of from two to four years incarceration.

Footnote 3:In any event, defendant's crime was committed in 2001. Pursuant to section 41 (d)(d-1), section 36 of the new law, which changes the sentencing for various drug offenses, these sentencing changes only take effect on the thirtieth day after it became law and thus, apply to crimes committed on or after this effective date. See L. 2004 738 §41. The statue was only enacted on December 14, 2004. Its effective date is January 13, 2005. Furthermore, because of defendant's admission to his prior felony conviction, he would be considered a second drug felony offender under the new guidelines.