The defendant, pro se, has moved for an Order to "set aside sentence upon the ground that it is invalid as a matter of law due to the recent legislative retroactively effective change" in the new Drug Law Reform Act of 2004 (DLRA).

The People allege that on May 7, 2003, the defendant shot two individuals and that at the time of his subsequent arrest, "he was carrying fifteen bags of cocaine." Defendant was indicted for one count each: Attempted Murder in the Second Degree, Assault in the First and Second Degrees, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Controlled Substance in the Third and Seventh Degrees. Defendant pled guilty on February 24, 2004 to Criminal Possession of a Controlled Substance in the Third Degree, a B felony. On April 8, 2004, defendant was sentenced to a term of imprisonment of from six to twelve years. Currently, defendant is incarcerated pursuant to this sentence.

In determining this motion, the court has considered the moving papers of the defendant, the response of Assistant District Attorney William H. Branigan and the court records.

In support of his motion to set aside his sentence, defendant argues that the "law, in general, terminates all previous indeterminate prison terms". Defendant states that "retrospective application of the new drug sentencing law, must have been the legislature's primary intent when it designed the new drug law." Defendant argues that "restrictive application" of the DLRA "effectively deprives all those similarly situated classes of drug offenders [those convicted of lesser drug offenses] of proportionately equal benefits preferentially reserved for Class A-I situated drug felons."

The People oppose defendant's motion to reduce his sentence, noting that "Section 23 of the new act, which creates the re-sentencing procedure, applies to 'any person in custody of the department of correctional services convicted of a class A-I felony offense defined in Article 220 of the Penal Law'". [*2]

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

The new law specifically provides for the resentencing of persons who are in the custody of the New York State Department of Corrections, who were convicted of a class A-I felony offense committed prior to January 13, 2005, and sentenced "to an indeterminate term of imprisonment with a minimum period of not less than fifteen years" (L. 2004, c. 738, § 23).

In the instant case, the court finds that the defendant meets all of these criteria and is therefore eligible to be resentenced. In view of the foregoing, the defendant's motion is granted to the extent that counsel shall be appointed to represent defendant.

Order entered accordingly

The Clerk of the Court is directed to forward a copy of this

decision and order to counsel for the defendant and the District Attorney.

BARRY KRON, A.J.S.C.