The issue in this case is whether defendant should be sentenced in accordance with the provisions of the Penal Law in effect at the time of the commission of the crime for which he has pleaded guilty or in accordance with certain provisions of the Penal Law as amended by Chapter 738 of the Laws of 2004. Chapter 738 enacted various reforms to the so-called "Rockefeller Drug Laws," including new sections of law lessening the severity of many of the minimum sentences mandated by those laws. For the reasons set forth below, I conclude that defendant must be sentenced in accordance with the provisions of the Penal Law in effect at the time of the commission of the crime, i.e., that the amendments to the sentencing provisions of the Penal Law effected by section 36 of Chapter 738 are not applicable retroactively to persons who committed drug crimes prior to the effective date of section 36.

On April 20, 2005, defendant pleaded guilty to a class B felony, Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39(1)), for selling cocaine to an undercover police officer on April 7, 2004 in Queens County. As a second felony offender, defendant faces a mandatory state prison sentence regardless of whether his sentence is controlled by the relevant provisions of Chapter 738 or those of the Penal Law in effect at the time of the crime. If the latter provisions are controlling, the minimum sentence authorized by law is an indeterminate prison term of from four and one-half to nine years. Penal Law § 70.06(3)(b),(4). However, under the relevant provisions of Chapter 738, and specifically the new section 70.70 added to the Penal Law by section 36 of Chapter 738, the minimum sentence authorized by law would be a determinate sentence of three and one-half years.^[FN1] Penal Law § 70.70(3)(b)(i).

Section 41 of Chapter 738 provides generally that "[t]his act shall take effect [*2]immediately" but goes on to provide otherwise with respect to certain sections of the act. Thus, subdivision (d-1) of section 41 specifies that the provisions of eleven particular sections of the act, including section 36, "shall take effect on the thirtieth day after [the act] shall have become a law, and such provisions ... shall apply to crimes committed on or after the effective date thereof[.]" Chapter 738 was signed into law by the Governor on December 14, 2004, and thus the provisions of the specified eleven sections took effect on January 13, 2005.

The unambiguous language of subdivision (d-1) is inconsistent with defendant's position that he is entitled to be sentenced in accordance with Penal Law § 70.70. The Legislature expressly provided that the provisions of section 36 of Chapter 738, which include the provisions of the newly-enacted section 70.70 of the Penal Law, "shall apply to crimes committed on or after" the thirtieth day after Chapter 738 shall have become a law, i.e., January 13, 2005. This language must be given effect. Majewski v. Broadalbin-Perth Central School District, 91 NY2d 577, 583 (1998).

Acceptance of defendant's position, moreover, would require that the words "shall apply to crimes committed on or after [the effective date]" be construed in one of at least three ways. First, the words could be construed to mean, "shall apply to crimes committed on or after or before [the effective date]" (which is tantamount to both "shall apply to crimes committed at any time" and "shall apply to crimes committed without regard to [the effective date]." Second, they could be construed to mean, "shall apply to crimes committed on or after or before [the effective date], except that such provisions shall not apply to crimes committed before [the effective date] in the event sentencing for such crime or crimes has occurred before [the effective date]." Third, they could be construed to mean, "shall apply to crimes committed on or after or before [the effective date], except that such provisions shall not apply to crimes committed before [the effective date] in the event sentencing for such crime or crimes has occurred before the day on which this act shall have become a law."

Each of these variants, of course, entails different policy judgments relating to the nature and extent of the criminal justice problems addressed by the Legislature and the effects the proposed reforms would have on the criminal justice system. Accordingly, acceptance of defendant's position also would entail judicial intrusion into the policy-making powers assigned under the constitution to the Legislature and the Governor. Bourquin v. Cuomo, 85 NY2d 781, 784 (1995). In addition, judicial acceptance of any of these alternatives (or of the other alternative that I will discuss below), would transgress a fundamental principle of statutory construction. See Chemical Specialties Manufacturers v. Jorling, 85 NY2d 382, 394 (1995) ("'Moreover, a court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact'") (quoting McKinney's Cons. Laws of NY Book 1, Statutes, § 363, at 525).

Another way to state the meaning of subdivision (d-1) is to say it provides that the provisions of section 36 shall apply "only" to crimes committed on or after the effective date. This formulation, however, does not thereby violate this canon of construction. The statements [*3]"shall apply to crimes committed on or after [the effective date]" and "shall apply only to crimes committed on or after [the effective date]," are logical equivalents. That is, the specification that the provisions apply to crimes committed "on or after" the effective date negates their application to crimes committed before the effective date, the only other temporal period. That the negation is implicit rather than explicit is of no legal moment. See People v. Meakim, 133 NY 214, 220 (1892) ("what is necessarily implied is just as much a part of the statute as if it were specifically written therein"); McKinney's Cons. Laws of NY, Book 1, Statutes, § 364, at 528 (same).

People v. Behlog, 74 NY2d 237 (1989), also supports the conclusion that the provisions of section 36 do not apply to crimes committed before the effective date of section 36. There, the Court identified an exception to the "general rule ... that nonprocedural statutes are not to be applied retroactively absent a plainly manifested legislative intent to that effect[.]" Id. at 240 (internal quotations and citation omitted). The exception applies "when the Legislature passes an ameliorative amendment that reduces the punishment for a particular crime." Id. As the Court went on to state, "[i]n such a case the law is settled that the lesser penalty may be meted out in all cases decided after the effective date of the enactment, even though the underlying act may have been committed before that date...." Id. (internal quotation marks and citation omitted).

The act at issue in Behlog, chapter 515 of the Laws of 1986, was ameliorative in nature, because it "reclassifie[d] certain criminal conduct as a class A misdemeanor rather than a class E felony and thereby reduce[d] the penalties that [could] be imposed." Id. at 241. Although nothing in Chapter 738 reclassifies the crime of Criminal Sale of a Controlled Substance in the Third Degree so as to make conduct in violation of the statute a less serious felony offense, the new section 70.70 of the Penal Law reduces the penalties for that crime and all other drug felonies (except when committed by persons with a prior violent felony conviction). In this and other respects, Chapter 738 is ameliorative in nature. Nonetheless, Chapter 515 of the Laws of 1986 and Chapter 738 are distinguishable in a crucial respect.

The effective date provision of Chapter 515 reads in full as follows: "This act shall take effect on the first day of November next succeeding the date on which it shall have become a law." Laws of 1986, Ch. 515, § 11. Because the Legislature was silent on the critical issue of whether the act's ameliorative provisions applied to crimes committed prior to its effective date, the holding in Behlog did not vitiate the language of the act let alone "a plainly manifested legislative intent ...." Behlog, 74 NY2d at 240. Cf. Majewski, 91 NY2d at 505 (noting the "equivocal" nature, "in an analysis of retroactivity," of statutory language providing that an act "shall take effect immediately") (internal quotation marks and citation omitted).

In short, the Court was required in Behlog by the necessity of deciding the case to choose between construing the ameliorative provision to apply prospectively only or prospectively and retroactively (at least to the extent of crimes committed, but for which sentence had not been imposed, prior to the effective date). No "plainly manifested legislative intent" precluded the [*4]Court from following the policy rationale behind the ameliorative-amendment exception to the general rule against retroactive application of nonprocedural statutes. To paraphrase Justice Holmes, judicial lawmaking that is unavoidable and interstitial is not improper lawmaking. Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917) (Holmes, J., dissenting).

People v. Oliver, 1 NY2d 152 (1956), upon which the Court relied in Behlog, similarly demonstrates that legislative determinations on the prospective or retroactive application of enactments are controlling. There, too, the Legislature enacted an ameliorative amendment to the Penal Law the effect of which was that persons under the age of fifteen could no longer be prosecuted under the criminal laws for acts that otherwise would constitute a crime and the issue before the Court was whether this ameliorative provision applied prospectively only. The Court held that the amendment also applied retroactively to acts committed prior to the effective date of the amendment by persons less than the age of fifteen who had not been sentenced prior to enactment of the amendment. Id. at 161-63.

The essential point, however, is not the Court's holding but that the Court began its analysis by stating that "the question is solely one of legislative design." Id. at 160 (emphasis added). The Court, moreover, immediately went on to observe that "[t]here are no express instructions in the statute as to its effect on prior behavior ...."^[FN2] Id. Accordingly, the opinion leaves no room for doubt that the Court would have held that the amendment applied prospectively only if the Legislature had given, as it did in subdivision (d-1) of section 41 of Chapter 738, "express instructions" that it applied to acts or crimes committed on or after the effective date.

Because the issue here is "solely one of legislative design," Oliver, 1 NY2d at 160 (emphasis added), the unambiguous language of subdivision (d-1) is alone sufficient to compel rejection of defendant's position. Majewski, 91 NY2d at 583 ("the clearest indication of legislative intent is the statutory text ..."). See also Kellogg v. Travis, 100 NY2d 407, 411 (2003) (giving effect to "undisputably clear language" of statute stating that act applied "to prisoners who were convicted of ... designated offenses before the effective date of the act").

To be sure, the Court in Oliver buttressed its holding with the following:

A legislative mitigation of the penalty for a particular crime represents a legislative judgment

that the lesser penalty or the different treatment

is sufficient to meet the legitimate ends of the criminal law. [*5]Nothing is to be gained by imposing

the more severe penalty after such a pronouncement;

the excess in punishment can, by hypothesis, serve

no purpose other than to satisfy a desire for vengeance.



Oliver, 1 NY2d at 160.

First, this avowed hypothesis is dictum. Second, because the Court had already made clear that "legislative design" is the controlling factor, this dictum cannot be viewed as some free-floating principle mandating the retroactive application of all ameliorative amendments without regard to "legislative design." Nor has the Court ever embraced such a principle as the basis for a holding that an ameliorative amendment applies retroactively. Third, the discussion immediately preceding this passage makes plain that the Court was opining with this hypothesis that no penological purpose could be served by the continued imposition of the more severe penalty. Oliver, 1 NY2d at 160. Even if that hypothesis is valid,^[FN3] it does not follow that no other legitimate purposes could be served. In fact, as discussed below, other legitimate purposes are served by the Legislature's determination that the lesser penalties authorized by the provisions of certain of the sections enumerated in subdivision (d-1) should apply prospectively only.

The Court's decision in People v. Festo, 60 NY2d 809 (1983), is also instructive. The enactment at issue in Festo effectively reduced the seriousness of the crime Festo committed. Although he committed conduct constituting the more serious crime before the act's effective date, Festo was convicted and sentenced after that date for the more serious crime. The Court [*6]upheld the conviction and sentence, and did so for the reasons stated by the First Department in its discussion of the retroactivity issue. Festo, 60 NY2d at 811. In its memorandum opinion, the First Department quoted the relevant language of the act's effective date provision, which repeatedly made clear that the act did not apply to crimes committed prior to its effective date. The First Department then held as follows: "Thus, we are specifically enjoined by law from imposing the lesser sentence permitted by the amended statute." People v. Festo, 96 AD2d 765, 766 (1st Dep't 1987).

Needless to say, the holding in Festo is inconsistent with the notion that ameliorative amendments must always be applied retroactively on the ground that no purpose could be served by doing otherwise. By adopting the First Department's reasoning, the Court essentially reiterated in Festo what it said in Oliver: that the retroactivity "question is solely one of legislative design." Oliver, 1 NY2d at 100 (emphasis added).

As defendant stresses, however, other courts have reached the opposite conclusion on this very issue. See, e.g., People v. Estela, 2005 WL 517452 (NY Sup. 2005); People v. Denton, 7 Misc 3d 373 (Kings Sup. 2005); People v. Murray, 7 Misc 3d 636 (Queens Sup. 2005); People v. Martinez, 2005 WL 1330535 (NY Sup. 2005). But see People v. Singletary, 2005 WL 756587 (NY Sup. 2005). Accordingly, it is appropriate if not essential to set forth the reasons for my disagreement with these decisions.

First of all, Festo cannot be distinguished on the ground that the language of subdivision (d-1) is "far less explicit," Estela, 2005 WL 517452, *3, than or "differs significantly," Denton, 7 Misc 3d at 382 n.21, from the language of the effective date provision at issue in Festo. The language of subdivision (d-1) is explicit; because the Legislature could have been more prolix does not make the language it used less unambiguous.

Nor is there anything illogical or absurd about the Legislature's considered decision that the provisions of section 36 and the other sections specified in subdivision (d-1) should apply prospectively only.^[FN4] True, one consequence of the Legislature's decision is that otherwise similarly situated drug offenders are eligible for sentences that can vary significantly, depending only on whether they committed their crimes before or after the effective date.^[FN5] But the [*7]Legislature was not required to conclude there are no significant differences between persons committing otherwise identical crimes before and after the effective date. To the contrary, the Legislature was entitled to conclude that a person who commits a drug felony at a time when he knows (or is at least presumed to know) he faces severe minimum penalties, is more blameworthy than a person who does not act in defiance of those severe penalties but otherwise commits the identical crime.

More fundamentally, this criticism proves too much. After all, if I were to agree with the Estela decision and apply the provisions of section 36 to defendant and all other persons who committed drug felonies prior to the effective date of section 36, provided only that they had not been sentenced prior to that date, the disparate treatment issue that concerned the court in Estela would not be eliminated. Rather, it still could be said that some persons would "serve ... longer period[s] of time than [others] who committed exactly the same crime a month or a day later." Estela, 2005 WL 517452 at *3. The only difference would be that the date of sentencing, not the date of the commission of the crime, would determine which offenders served longer sentences. Although the number of offenders subject to this "disparate" treatment would be reduced, any resulting benefits would not be cost-free. For example, at least some arguably more culpable offenders (those who committed their drug crimes in defiance of the severe penalties mandated by law at the time) would be treated the same (i.e., be sentenced to one of the new, reduced minimum sentences) as others who committed exactly the same crime after the effective date. Additionally, at least some persons who promptly admitted guilt and were sentenced before the [*8]effective date would be treated more severely than others (including co-defendants) who committed exactly the same crime before the effective date but refused, more or less obdurately, to accept responsibility for their actions until shortly after or just before the effective date.^[FN6]

Moreover, in deciding whether the provisions of the sections specified in subdivision (d-1) should apply to drug felonies committed prior to the effective date, the Legislature was entitled to consider the effects of its decision on the criminal justice system. The most sweeping form of retroactive relief would permit all persons serving state prison sentences as of the effective date for such felonies to apply for resentencing under the new law, as well as all persons who had not been sentenced for such felonies as of the effective date to be sentenced under the new law. The Legislature, however, was entitled to conclude that too great a burden would be imposed on the courts and the criminal justice system generally by this alternative.^[FN7] Similarly, the Legislature could have concluded that the less sweepingly retroactive alternative — making the new sentencing laws applicable to all persons who had committed their crimes before but had not been sentenced as of the effective date — would entail unacceptable consequences beyond those already noted. For example, upon the mere passage of such a version of Chapter 738 the routine progression of felony drug prosecutions would be interrupted at the least. Persons who otherwise would enter guilty pleas or proceed to trial would have powerful incentives not to do so and those who had pleaded guilty would have equally powerful incentives to attempt to postpone sentencing. [*9]

Whether these considerations actually did inform the Legislature's decision to give prospective effect only to the provisions of section 36 and the other sections specified in subdivision (d-1) need not be debated. Cf. Port Jefferson Health Care Facility v. Wing, 94 NY2d 284, 290 (1999) ("'a classification must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification'") (quoting Heller v. Doe, 509 U.S. 312, 320 (1993) (emphasis added in Wing)). What is indisputable is that the Legislature was aware that serious fairness concerns would arise by denying to all persons serving state prison sentences for drug crimes committed prior to the effective date of subdivision (d-1) the benefits of the potentially more lenient sentences authorized by provisions of section 36.

Far from ignoring these fairness concerns, the Legislature squarely addressed them. Thus, the provisions of section 30 of Chapter 738 enable certain persons serving indeterminate prison sentences for all drug felonies (other than class A-1 felonies) committed prior to the effective date of the section (which, pursuant to subdivision (e-1) of section 41, is the "thirteenth [sic] day after [Chapter 738] shall have become a law"), to be released on parole at an earlier date than otherwise would be permissible. Specifically, these inmates "may receive an additional merit time allowance not to exceed one-sixth of the minimum term" provided that he or she satisfies certain conditions.^[FN8] Similarly, as noted above, the provisions of section 23 of Chapter 738 enable persons serving sentences for class A-1 felony drug crimes committed "prior to the effective date of this section" (which, again pursuant to subdivision (e-1) of section 41, is the "thirteenth [sic] day after [Chapter 738] shall have become a law") to apply for resentencing in accordance with Penal Law § 70.71 and thereby seek to obtain the benefits of the reduced sentences that section authorizes.

Obviously enough, the ameliorative provisions of sections 23 and 30 are the Legislature's considered response to the sentencing disparities that necessarily flow from limiting the potential benefits of section 36 to crimes committed on or after the effective date of section 36.^[FN9] To hold [*10]that the provisions of section 36 nonetheless apply to certain offenders who committed drug felonies prior to that date would be tantamount to granting different ameliorative relief to those offenders. Moreover, section 30 also represents a legislative determination that the specified offenders should earn sentencing relief by successful participation in the prescribed programs. But sentencing relief would be bestowed without regard even to participation in these programs if the provisions of section 36 were held to apply to all offenders committing drug felonies prior to the effective date of section 36 who had not been sentenced as of that date.^[FN10]

The bare fact of sentencing disparities is not significant for another reason. As the Court of Appeals stated in Oliver, "[w]henever the Legislature alters existing law, a certain measure of inequality is bound to ensue." Oliver, 1 NY2d at 163. Accordingly, the ability to conceive particular anomalies or to perceive arguable inequalities arising from the Legislature's unambiguous decision to make the provisions of the sections specified in subdivision (d-1) applicable only to crimes committed after the effective date of Chapter 738, affords no basis for disregarding that unambiguous decision.^[FN11]

Another matter merits discussion. The Legislature had yet another reason to stipulate that the provisions of section 36 apply prospectively to "crimes committed on or after" its effective date. Ch. 738, § 41(d-1). Of course, the Ex Post Facto clause of the federal constitution, U.S. Const., Art. I, § 10, cl. 1, "forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred." Weaver v. Graham, 450 U.S. 24, 30 (1981). The provisions of sections 70.70 and 70.71 of the Penal Law, both of [*11]which were added to the Penal Law by section 36, do more than authorize reduced sentences for the commission of many drug felonies. Other provisions of both sections either mandate the imposition on certain drug felons (those who have previously been convicted of a violent felony offense) of determinate sentences with terms greater than the lowest authorized minimum term of the indeterminate sentences previously required, or authorize the imposition on them of determinate sentences with terms greater than the highest authorized minimum term of the indeterminate sentences previously required.^[FN12]

The precise extent of the ex post facto problems that would result from the application of these provisions of section 36 need not be determined. It is enough to note that ex post facto violations would result.^[FN13] Accordingly, even if the language of subdivision (d-1) were ambiguous, respect for the Legislature would require that it be construed to preclude the application of sections 70.70 and 70.71 of the Penal Law to crimes committed before the effective date of section 36. Cf. Jones v. United States, 526 U.S. 227, 239 (1999) ("under the rule, repeatedly affirmed, that 'where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to the latter'") (quoting United States ex rel. Attorney General v. [*12]Delaware & Hudson Co., 213 U.S. 366, 408 (1909)); Jones, 526 U.S. at 239-240 ("[i]t is 'out of respect for Congress, which we assume legislates in light of constitutional limitations,'... that we adhere to this principle...") (quoting Rust v. Sullivan, 500 U.S. 173, 191 (1991)). To say the least, the unequivocal language of subdivision (d-1) cannot possibly provide a reason for construing it any differently.

Apart from drafting subdivision (d-1) as it did, the Legislature could have addressed the ex post facto issue in other ways. For example, instead of including the sentencing provisions for drug felons with a prior violent felony conviction in the new sections 70.70 and 70.71 of the Penal Law created by section 36 of the act, the Legislature could have placed them in another new section of the Penal Law and specified that the section of the act creating that new section would apply only to crimes committed on or after its effective date. Alternatively, the Legislature could have drafted subdivision (d-1) so that the provisions of section 36 would apply to crimes committed at any time except that, with respect to persons who had committed crimes before its effective date, the provisions of section 36 would not apply to anyone whose rights under the Ex Post Facto clause would be violated thereby.

For whatever reasons (some possibilities have been discussed), the Legislature did not adopt either alternative. In any event, the second but not the first alternative has an obvious drawback: it would impose on the criminal justice system the delays, uncertainties and other costs attendant to litigating all the ensuing ex post facto claims on a case-by-case basis. By giving effect to the unambiguous language of subdivision (d-1) as enacted by the Legislature, these costs are avoided. By contrast, the holdings in Estela, Denton, Murray and Martinez require that they be incurred. In addition, they effectively adopt through judicial interpretation precisely this flawed alternative. Accordingly, these decisions also violate the canon of construction that forbids courts from both "amend[ing] a statute by inserting words that are not there [and]... read[ing] into a statute a provision which the Legislature did not see fit to enact...." Jorling, 85 NY2d at 394 (internal quotation marks and citation omitted).

Finally, to the extent the court in Martinez concluded that the "only possible purpose" of the language of subdivision (d-1) is "to avoid ex post facto problems," Martinez, 2005 WL 130535, *10, I must disagree. As discussed above, additional purposes would be served. But even if avoiding ex post facto problems were the "only possible" purpose, subdivision (d-1) unambiguously states that the enumerated sections of the act, including section 36, shall apply to crimes committed on or after the effective date. No precedent I am aware of, and the court in Martinez did not cite one, holds or even suggests that before giving effect to the unambiguous language of a statute a court must have "actual evidence," id., that the Legislature meant what it plainly said. Be that as it may, for all the reasons discussed above I conclude that the provisions of section 36 apply to drug crimes committed on or after the effective date of section 36 and only to such crimes.

[*13]

J.S.C.