The defendant, a non-violent predicate felon, appeared before this court on January 13, 2005, charged with two indictments. Indictment No.720/04 charged the defendant with one count of Criminal Sale of a Controlled Substance in the Third Degree, in violation of Penal Law §220.39(1), and Criminal Possession of a Controlled Substance in the Third Degree, in violation of Penal Law §220.16(1), alleging that the defendant sold and possessed heroin on February 6, 2004. The second indictment, #4336/04, alleged that the defendant possessed heroin on August 4, 2004, in violation of Penal Law §§220.16(1) and 220.09(1).

Defense counsel indicated that his client was prepared to plead guilty and asked that he be sentenced pursuant to the newly revised sentencing structure enacted as Chapter 738 of the Laws of 2004, popularly referred to as the revision of the "Rockefeller drug laws". The newly enacted legislation substantially modified the sentences authorized for felony convictions relating to controlled substances pursuant to Penal Law Articles 220 and 221. As applied specifically to this case, it revised the sentence for a predicate, non-violent felon convicted of Criminal Sale of a [*2]Controlled Substance in the Third Degree from an indeterminate range of four and one-half to nine years, up to twelve and one-half to twenty-five years, to a newly revised determinate sentence range of three and one-half years to twelve years.

The issue before this court is whether this revised sentence structure is applicable to defendants whose offenses were committed prior to the effective date of January 13, 2005. This court concludes that it does apply retroactively to all those individuals who have not been sentenced prior to January 13, 2005.

The Court of Appeals held in People v. Behlog, 74 NY2d 237 (1990), that when the legislature passes an ameliorative amendment that reduces the punishment for a particular crime, that lesser penalty applies to all cases decided after the effective date provided by the enactment, even though the underlying act may have been committed before that date.

It is beyond cavil that the portion of the revised laws that reduces the sentence for a particular crime without any modification of the definition of that crime is ameliorative. It follows, therefore, that such a case comes within the Behlog exception regarding retroactive application of new statutes. In explaining this rule, the Court of Appeals stated:

"The rationale for this exception is that by mitigating the punishment 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 (id). Imposing the harsher penalty in such circumstances would serve no valid penological purpose (id.; see also, In re Estrada, 63 Cal 2d 740, 408 P2d 948, 951-952 [following Oliver rule])."

This court has considered People v. Festo, 96 AD2d 765 (1st Dept. 1983), aff'd, 60 NY2d 809 (1983). Citing People v. Oliver, 1 NY2d 152 (1954), the Appellate Division in Festo acknowledged that it would be inclined to apply the reduction of punishment in a case where the defendant had committed the crime before the effective date of the statute but was tried, convicted, and sentenced after the effective date. In declining to apply the statute retroactively, the court acknowledged the explicit limitation contained in the new law:

"Were we free to apply that rule in this case we might well be inclined to do so for chapter 410 of the Laws of 1979 reduced the crime committed by defendant to criminal sale of a controlled substance in the second degree. The statute became effective 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 section 29 of chapter 410 provides: 'Except as provided in section three of this act, the provisions of this act do not apply to or govern the construction of and punishment for any offense committed prior to the effective date of this act, or the construction and application of any defense to a prosecution for such an offense. Such an offense must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if this act had not been enacted." (Emphasis supplied.) Thus, we are specifically enjoined by law from imposing the lesser sentence permitted by the amended statute. Moreover, we take occasion to note that the statute did much more than simply alter the punishment for the crime. It redefined the crime by increasing the weight of the narcotic drug sold necessary to constitute the sale an A-I felony."

While the legislation here contains an effective date, it is far less explicit than that in Festo. Here, the statute states that it "shall apply to crimes committed on or after the effective date thereof." It is noted that these amendments to the "Rockefeller drug laws" covered a wide range of issues including sentencing, the definition of certain crimes, and other related matters. This court cannot interpret the effective date so narrowly when it is considering only the issue of the reduction in applicable sentences. It would be illogical to find that the legislative intent was that this defendant should serve a longer period of time than someone who committed exactly the same crime a month or a day later. The compelling rationale of this legislation is that the sentence for this particular crime was excessive and should be reduced, and it is consistent with this legislative intent that this court now apply the well-established principle stated in Behlog. Had the legislature intended otherwise, it is reasonable to assume that they would have used Festo's explicitly restrictive language. This court cannot interpret the language used here to be the equivalent of that in Festo, and therefore does not consider itself to be "specifically enjoined" from applying the new sentencing guidelines in this case.

Curiously, the People oppose retroactive application of the new sentencing structure^[FN1] . They urge a strict interpretation of the effective date. This argument is flawed, however. Under the Behlog analysis, the existence of an effective date for the statute only begins the analysis, it does not end it. Indeed, but for the effective date specified in the statute, the Behlog principle would not exist.

For the reasons stated herein, this defendant is entitled to be sentenced pursuant to the revised sentencing structure in chapter 738 of the Laws of 2004. This constitutes the Decision [*4]and Order of this court.

Dated: January 31, 2005

New York, New York

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William A. Wetzel