On August 6, 2001, the defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree, a class C felony, in violation of Penal Law ("PL") §§ 110/220.39. The defendant's sentence was deferred while he participated in the Drug Treatment Alternative to Incarceration program run by the Office of Special Narcotics prosecutor in conjunction with the court. If the defendant successfully completed the drug treatment, his case would be dismissed. If the defendant left drug treatment and returned to court voluntarily, he would receive an indeterminate sentence of four to eight years. If the defendant left treatment and returned involuntarily or was rearrested the defendant was to receive a sentence of five to ten years. The defendant was a predicate felon. The defendant was released to a drug treatment program on June 11, 2002. Although he had some success while in treatment, the defendant had numerous set backs and problems. He was ultimately discharged from the treatment program after being arrested in New Jersey. The defendant was sentenced on January 30, 2004, to a period of incarceration of five to ten years. The defendant now moves to be re-sentenced pursuant to a new sentencing statute known as the "Rockefeller Drug Reform" law.

The "Rockefeller Drug Reform" law provides that the new sentencing guidelines for drug crimes "shall apply to crimes committed on or after the effective date . . . ." (L.2004, c. 738, § 41 [d-1]) The effective date of the law was January 13, 2005.

The new law contains a section providing for the re-sentencing only of those persons in the custody of the New York State Department of Correctional Services, convicted of a class A-1 committed prior to January 13, 2005, and sentenced to an indeterminate sentence with a minimum of 15 years. With respect to inmates convicted of crimes other than class A-1 felonies, the statute provides that "[i]f the court determines that such person does not stand convicted of such class A-1 felony offense, it shall issue an order denying the application." (L.2004, c. 738, §§ 23)

In view of the fact that the defendant pleaded guilty almost three and a half years prior to the effective date of the new sentencing law and the plea was not to a class A-1 felony, [*2]the defendant is not eligible to be re-sentenced.

Therefore, the defendant's motion is denied.

The foregoing is the decision and order of the court.

Dated: New York, New York

March 30, 2005 Laura A. Ward

Acting Justice Supreme Court