By petition dated May 8, 2006, defendant sought re-sentencing pursuant to the Drug Law Reform Act of 2005 [DLRA] (L.2005, c. 643, § 1, eff. Oct. 29, 2005). Defendant submitted a supplemental affirmation in support of the petition dated June 5, 2006, and the People interposed opposition by affirmation dated June 20, 2006. Also submitted by the parties were defendant's reply affirmation dated July 7, 2006, the People's sur-reply affirmation dated July 18, 2006 and defendant's "sur-sur-reply" affirmation dated July 26, 2006. The Court set the matter down for oral argument, and for an opportunity for defendant to be heard, which took place on October 18, 2006.

Based upon the written submissions of counsel, arguments made before the Court, as well as a reading of the Court file, this Court makes the following findings of facts:

On or about February 26, 2002, at approximately 8:00 p.m., a search warrant was executed by the New York City Police Department inside 444 Prospect Avenue, Brooklyn. The police obtained the subject warrant based upon information that defendant, the target of the warrant, and his brother, Eduardo Dominguez, were conducting a crack cocaine operation from the location. When the warrant was executed, defendant, Eduardo Dominguez and a third brother, Jose Rodriguez, were inside 444 Prospect Avenue. Moreover, the police recovered one hundred and forty-seven small ziploc bags of crack cocaine, weighing in excess of six ounces, as well as one large rock of crack, 500 empty ziploc bags, an air pistol which resembled a "Mac-10" machine gun and the sum of $912 in United States Currency.

For these acts, defendant was indicted under Indictment 1272/02 and charged with Criminal Possession of a Controlled Substance in the First Degree (a class A-I felony), two counts of Criminal Possession of a Controlled Substance in the Third Degree and Criminally Using Drug Paraphernalia in the Second Degree.

Defendant pled guilty to the class A-II felony of Criminal Possession of a Controlled Substance in the Second Degree in full satisfaction of the indictment, and was sentenced on May [*2]1, 2003, as a predicate felon, to an agreed upon term of incarceration of seven years to life. The Court notes that this plea agreement reflected a decrease from the ten years to life offer initially made by the People and provided defendant with a significantly lighter sentence than the fifteen years to life minimum sentence he faced at the time for the class A-I felony listed as the top count of this indictment.

The Court notes that defendant was on lifetime parole as a result of a prior conviction for a class A-II drug sale felony at the time of the commission of the subject criminal activity. According to the People's affirmation in opposition to the petition, this prior class A-II felony conviction resulted from a long term drug investigation of defendant who was arrested on March 4, 1998, within the confines of the 72nd Precinct, also located in Brooklyn. Under this indictment (2968/98), defendant was charged with multiple counts of Criminal Sale of a Controlled Substance in the Second and Third Degrees, as well as lesser charges, for three separate sales of crack cocaine to undercover narcotics detectives. While defendant was at liberty on bail for these charges, he was again arrested in Brooklyn for class A-II and B drug sale felonies. Defendant was subsequently indicted under Indictment 10016/98.

On or about March 15, 1999, Indictments 2968/98 and 10016/98 were consolidated and defendant received the benefit of a plea bargain whereby defendant pled guilty to Criminal Sale of a Controlled Substance in the Second Degree and lesser charges. On May 12, 1999, the Honorable Michael Ambrosio, then sitting in Criminal Term and still a sitting Justice of the Supreme Court, sentenced defendant to three years to life for the class A-II felony of Criminal Sale of a Controlled Substance in the Second Degree, to run concurrent with a one to three year sentence for the lesser class B drug felonies which were mandated as part of the plea agreement. Defendant served the term of incarceration under the plea and was on lifetime parole when he was arrested and charged with the class A-I felony, and other charges, under the instant indictment.

According to defense counsel, defendant had been a model inmate and manifested behavior consistent with a strong commitment to rehabilitate himself for his youthful transgressions. Defense counsel stated in the moving papers and advocated at oral argument that defendant is now thirty years of age, and was both much younger in years and maturity at the time the three separate class A-I, A-II and B drug felonies were committed in 1998 and 2002. Moreover, defense counsel maintains that defendant "has participated in the GED and Comprehensive Alcohol and Substance Abuse Treatment (CASAT) programs." Mr. Dominguez has been on work-release since May 19, 2006, and is doing well. In support of the instant proceedings, defense counsel avers that defendant has been punished for the new offense and that substantial justice does not require this Court to withdraw the offer of re-sentencing.

By Order of this Court dated November 15, 2006, the Court did not address the merits of the 1999 conviction which was rendered by Justice Michael Ambrosio, because Justice Ambrosio is still sitting as a Supreme Court Justice, albeit in a Civil Part (see L.2005, c. 643, § 1, eff. Oct. 29, 2005, supra [providing, inter alia, "[s]uch application shall be referred for determination to the judge or justice who imposed the original sentence upon such person."]; see also People v Figueroa, 21 AD3d 337, lv denied 6 NY3d 753). Thus, defendant's petition to be re-sentenced under consolidated Indictments 2968/98 and 10016/98 was denied without prejudice to renewal before the proper Justice of the Supreme Court. [*3]

In addressing that branch of the petition seeking re-sentencing under Indictment 1272/02, the People correctly conceded that defendant is eligible for the requested relief. While not discounting the severity of defendant's criminal history, he had manifested stellar rehabilitative efforts and was succeeding in a work-release program, fulfilling one of the most important goals of our penal system (see People v Notey, 72 AD2d 279; see also People v Suitte, 90 AD2d 80). Moreover, the amount of the controlled substance defendant was charged with under this indictment (six ounces) would constitute a class A-II felony under the amended statute (see Penal Law § 220.18). Thus, under the totality of circumstances, the Court deemed it appropriate that defendant be re-sentenced to a determinate term of incarceration of seven years with five years of post release supervision (see L.2005, c. 643, § 1, eff. Oct. 29, 2005, supra [the petition should be granted and defendant re-sentenced pursuant to the amended determinate class A-II sentencing structure unless "substantial justice dictates that the application should be denied"]).^[FN1]

Accordingly, this Court granted defendant's petition regarding the 2002 conviction seeking re-sentencing of the 2002 conviction pursuant to the DLRA to the extent of re-sentencing defendant to seven years of incarceration and five years of post release supervision. Defendant sought an adjournment to consider this Court's offer. During the pendency of the adjournment, defendant was arrested for selling cocaine in Nassau County. Defendant ultimately pled guilty to Criminal Possession of a Controlled Substance in the Second Degree and has been sentenced.

In light of the new arrest and conviction in Nassau County, as well as his prior criminal history, this Court hereby withdraws the offer made in its November 15, 2006 Order. Defendant's conduct has established to the Court that he is not a person contemplated by the Legislature in enacting the Drug Reform Act of 2005. Lifetime parole is the only appropriate punishment to deal with this defendant. He was given a very generous offer from this Court, yet still returned to selling large quantities of cocaine.

Defendant's application is denied in its entirety.

This shall constitute the Decision and Order of the Court.

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HON. GUY J. MANGANO, JR.JUSTICE OF THE SUPREME COURT