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By:
Don Murray
Shalley & Murray
New York City
11835 Queens Blvd.
Suite 1220
Forest Hills, NY 11375
718-268-2171
Westchester
272 Route 202
Somers, NY 10589
914-276-2585 |
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In January, 2005, new drug
sentencing laws went into effect in New York that adjusted some
of the harshest penalties for drug offenses. This article
briefly outlines the most significant of these changes. |
Offenses |
| New York State's
Drug Law Reform of 2005 - Overview |
The
New York State Legislature changed our drug laws in a way
that makes them, in some cases, far less harsh than they
have been. Here is a brief overview of some of the
highlights of the new laws. This is by no means a
complete analysis. For in-depth discussion of the new
drug laws in New York and how they might apply to you or
someone you know, you need to call
718-268-2171 now and speak to a lawyer from Shalley &
Murray.
WHEN DID THE LAW TAKE EFFECT?
The changes
came into
effect for most of the laws as of January 13, 2005. That means
that except for the few provisions that were meant to take effect
immediately, the new rules apply only to new cases in which people were arrested on or after January 13, 2005. Please note that there
is some debate about this issue in the legal community. One issue
that will likely be addressed soon is whether or not the laws will apply
to people whose cases started before January 13, 2005, but whose cases
are not yet concluded.
As a general rule in the
law, the answer would probably be that the new laws apply only to cases
beginning January 13, 2005 (unless the law is specifically written
otherwise). Nevertheless, there are various theories about this
being floated in the New York Criminal Defense community. It will
certainly be interesting to see how this issue plays itself out, but for
now there is no absolutely definitive answer, except the general
assumption that the laws will only apply to new cases beginning on or
after January 13, 2005.
CLASS A POSSESSION FELONIES
Class A drug possession
felonies were among the harshest drug laws in the entire nation.
Before the new laws, possession of four ounces or more of cocaine was an
offense requiring a minimum period of prison of 15 years and potentially
up to 25 years. Under the new law, the amount of cocaine required
to trigger the A-1 felony is twice what it used to be (now 8 ounces
instead of 4 ounces). Furthermore, the minimum sentence for an A-1
drug felony is no longer 15 years. It is now, for a first arrest,
about half that (8 years) and the maximum is 20 years. That still
means that a person convicted of an A-1 felony must receive at least 8
years in prison, even it is a first arrest. But under the old law
the person faced 15 to life, the same minimum sentence New York
maintains for a murderer.
PEOPLE CONVICTED UNDER OLD LAW FOR A-1
FELONIES
The new law also permits
people who are currently serving sentences under the old A Felony rules
to petition for resentencing according to the new sentencing rules.
When possible these motions must be made before the sentencing judge and
the sentencing judge will hold a hearing to review the petition.
The presumption seems to be
in favor of a resentence to a definite term consistent with the new
guidelines. Assuming a resentence is offered, the defendant has
the choice to accept or reject the judge's new determinate sentence.
For example, a person
serving a 20 to life sentence for an A-1 cocaine possession might
petition the court for a resentence. Assuming that "substantial
justice" does not require the petition to be denied, the judge will
grant the petition and then offer the defendant a sentence consistent
with the new guidelines.
If it is a first arrest, the
judge would be allowed to offer the defendant a new sentence of a
specific number between 8 and 20. If the judge offered the
defendant 8, the defendant could accept the 8 years or stay with the 20
to life. The defendant will have the right to appeal the
determinate sentence offered. For example, if the determinate
sentence offered in the above case were "20" (the maximum) the defendant
might well have a legitimate issue for such an appeal on the grounds
that the 20 year offer was harsh and excessive.
According to officials in
New York State, there are 446 inmates eligible for resentencing under
this particular statute.
CLASS B DRUG OFFENSES
Class B drug offenses,
including the "sale" of even a microscopic amount of drugs were also
harshly dealt with by New York. The rules have been relaxed
somewhat.
A first arrest for the
"sale" of drugs in New York used to require an indeterminate sentence of
1-3 in prison. Now the new minimum is a definite 1 year in prison.
For subsequent arrests the changes are a little more dramatic. It
used to be that if a person had a prior felony offense within the last
ten years, a new arrest for a B felony sale of drugs meant that the
person was looking at a mandatory minimum of 4 1/2 to 9 years and
potentially 12 1/2 to 25 years in prison. Now, a person with a
prior NON-VIOLENT offense faces a definite sentence of between 3 1/2 and
12 (one number from 3 1/2 to 12).
Oddly enough, there is one
area in which the penalty for B felony drug sale offenses was actually
MADE MORE SEVERE under the new law. Now, if you have a prior
VIOLENT FELONY within the last 10 years, a conviction for B felony sale
of drugs means that your mandatory minimum is now 6 years and you face
up to 15 years. Under the old law your mandatory minimum would
have been 4 1/2 to 9 years. Therefore, in this one particular
area, the drug laws in New York have actually gotten worse.
OTHER DRUG OFFENSES (C D OR E felonies)
The sentencing structure for
lesser drug felonies has been somewhat reduced. Frankly, most drug
cases begin their lives as B felonies, given the low thresholds for
establishing the B felony drug cases.
MORE GOOD NEWS - MERIT TIME
Drug offenders serving
determinate sentences pursuant to the new statutes will be eligible to
receive additional merit time beyond the standard 1/7th by participating
in assigned work and treatment programs and obtaining a GED, alcohol and
substance abuse certificate, vocational trade certificate, or community
service in a work crew.
CONCLUSION
In the end the news is good
for those whose crimes are more likely related to addiction issues than
anything else. The sentences are less severe, and there are
greater opportunities to lessen sentences that are imposed.
There are
some changes to the law
that are not reflected in the above summary. If you have questions
about the new laws and how they might apply to you or someone you know,
you need to consult with a lawyer.
Call
718-268-2171 now for that free consultation with a lawyer from
Shalley & Murray.
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