The Legislature of the State of New York has enacted historic revisions to the “Rockefeller” Drug Laws as part of the 2009-2010 budget. New York State Governor David Paterson signed the law on April 7, 2009. Many of the changes are effective immediately and apply to pending cases where the sentence was not imposed prior April 7, 2009. Here is a summary of the highlights of the reform legislation.
1. New Sentencing Laws for Drug Crimes (Effective immediately)
First Time Felony Drug & Marijuana Offenders
Class B: Jail time is no longer mandatory B Probation, a split sentence, a definite jail term, and a state prison term between 1 and 9 years (with post-release supervision) are now authorized sentences. If imposing a state prison sentence, the Court may order the defendant to be directly placed in the Willard drug treatment program as part of a sentence of parole supervision. The court may now also order the defendant to be directly placed in the SHOCK incarceration program. The maximum age for SHOCK has been increased to 50 (from 40).
Class C, D and E: Imprisonment will continue to be discretionary, not mandatory. All non-jail dispositions are authorized (e.g., probation, split sentences) and local jail terms. The sentencing court may order the client directly placed in the SHOCK incarceration program. The new law does not authorize a Willard parole supervision sentence for these clients because courts have many other sentencing options. (The Legislature has reserved Willard for first time Class B drug offenders, and certain second felony Class C, D and E offenders).
Second Time Felony Offenders (with non-violent prior felony conviction)
Class B: Jail is required unless the client is diverted for drug or alcohol treatment pursuant to a new section of the Criminal Procedure Law which authorizes diversion in the court=s discretion (i.e., without D.A. consent) following an alcohol and substance abuse evaluation (see below). Although the judicial diversion option will be available for clients who committed crimes prior to the effective date of the legislation, it does not go into effect until October 7, 2009.
The minimum state prison sentence for Class B second felony drug offenders (with a prior non-violent felony) is reduced to 2 years (from 3 2). The maximum is unchanged at 12. Therefore, Class B second felony offenders (prior non-violent) who are not judicially diverted to treatment and are eligible for release within 3 years are SHOCK eligible, and may be directly placed in the program by the court, provided they otherwise meet eligibility requirements.
Class C, D and E: Jail is not required B all non-jail dispositions are authorized, including judicial diversion. In addition, Willard placement (without DA consent), and judicial SHOCK placement are available sentencing options.
Rolling SHOCK admissions for longer sentences
A separate section authorizes rolling admissions to SHOCK when otherwise eligible inmates serving longer terms of imprisonment are within 3 years of parole or conditional release eligibility. Rolling admissions may not be authorized by direct judicial placement; they are subject to approval by the State Department of Corrections.
Optional state prison sentences for second felony offenders (prior non-violent felony)
Class C B 1 2 (reduced from 2) to 8 years B plus PRS (a/k/a Post Release Supervision or Parole)
Class D B 1 2 to 4 years (unchanged) B plus PRS
Class E B 1 2 – 2 (unchanged) B plus PRS
Second Felony Offenders (with prior violent felony)
The reduced sentencing changes and options are not available to clients who are second felony offenders with a predicate violent felony conviction(VFO). They still face mandatory imprisonment, and will continue to be governed by the strict Penal Law ‘ 70.70 (4):
Class B B 6 – 15 years B plus PRS (categorical ineligibility for SHOCK)
Class C B 3 2 B 9 years B plus PRS
Class D B 2 2 – 4 2 years B plus PRS
Class E B 2 B 2 2 years B plus PRS
SHOCK eligibility for certain Class C, D and E offenses B including judicial placement – if the client otherwise meets eligibility requirements B i.e., release eligible within 3 years, no prior DOCS commitments, no exclusion convictions
DA consent eliminated for all Willard-eligible offenses (Effective immediately)
The new law took away the requirement that the District Attorney consent to a Willard parole supervision sentence for certain Class D felony convictions. It also expands this sentencing option to Class B first felony drug offenders, and second felony Class C, D, and E offenders (prior non-violent)[1] Without consent of the D.A., courts may sentence clients convicted of the following crimes to Willard:
Criminal mischief in the second and third degrees
Grand larceny in the fourth degree (P.L. ‘ 155.30 except subdivisions 7 and 11)
Grand larceny in the third degree (except firearms)
Unauthorized use of a vehicle in the second degree
Criminal possession of a stolen property in the third and fourth degrees (except firearms)
Forgery in the second degree
Criminal possession of forged instrument in the second degree
Unlawfully using slugs in the first degree
Burglary in the third degree
First time Class B drug offenders, and second felony Class C, D and E drug & marijuana offenders (prior non-violent).
2. Judicial Diversion Program (Effective October 7, 2009)
The biggest change of the new law is authorization for a Court to divert most drug and marijuana offenders with an identified alcohol or substance abuse problem to treatment. It provides that courts may divert drug offenders (Class B through E), including second felony drug offenders, to in-patient or out patient treatment programs in lieu of prison without consent of the D.A. Courts may also order judicial diversion for clients charged with Willard eligible crimes.
Excluded from diversion eligibility are: 1.) second felony drug offenders with predicate violent felony offense convictions; 2.) clients with a conviction for a merit time ineligible offense within the preceding 10 years (generally sex and homicide offenses; 3.) clients with a Class A felony drug conviction within the preceding 10 years; 4.) clients who have ever been adjudicated a second violent felony offender or a persistent violent felony offender. Also ineligible for diversion are clients currently charged with a violent felony offense, or a merit time ineligible offense, for which imprisonment is mandatory upon conviction, while such charge is pending. However, the court may order diversion in any of the above situations with consent of the D.A.
After ordering and receiving an alcohol and substance abuse evaluation, the court must make findings with respect to whether:
a. the defendant is statutorily eligible for diversion
b. the defendant has a history of alcohol or substance abuse or dependence;
c. such alcohol or substance abuse or dependence is a contributing factor to the defendant=s criminal behavior;
d. the defendant=s participation in judicial diversion could effectively address such abuse or dependence; and
e. institutional confinement of the defendant is or may not be necessary for the protection of the public.
Generally, a guilty plea will be required for judicial diversion, but the court may, in exceptional circumstances, where the plea is Alikely to result in severe collateral consequences,@ order diversion without a guilty plea, and may do so in any case with consent of the D.A. The court will have a range of options upon the client=s successful completion of the diversion program, including allowing the defendant to withdraw a guilty plea and dismissing the indictment, or substituting a misdemeanor conviction in lieu of the felony. The court will also have a range of options when a client is unsuccessful in the diversion program, including imposing a state prison sentence for the crime of conviction or a lesser offense. The legislation directs courts to consider that Apersons who ultimately successfully complete a drug treatment regimen sometimes relapse by not abstaining from alcohol or substance abuse@ and to consider using a Asystem of graduated and appropriate responses or sanctions.@
1. Conditional sealing of records upon completion of judicial diversion or similar drug treatment program (Effective: 60 days from enactment)
The legislation authorizes courts to conditionally seal records of drug, marijuana and Willard-eligible non-drug crimes upon a defendant=s successful completion of a judicial diversion program, DTAP or similar substance abuse treatment program. Sealing authority will also extend to up to three of the client=s prior misdemeanor drug or marijuana convictions. A new arrest for a crime will effectively unseal these records with some exceptions.
2. Resentencing of inmates convicted and sentenced to indeterminate terms under former law (Most provisions effective October 7, 2009)
The bill authorizes discretionary resentencing of inmates who were convicted of Class B drug offenses committed prior to January 13, 2005, and sentenced to indeterminate terms under the old sentencing law. Inmates serving indeterminate terms with maximum terms of Amore than 3 years@ (e.g., 2 B 4 years) may petition the sentencing court for resentencing under the new determinate sentencing scheme. As part of the application, the inmate may also move for resentencing on any Class C, D, or E drug or marijuana convictions Awhich were imposed by the sentencing court at the same time or were included in the same order of commitment as such class B felony.@ The resentencing procedure will be governed by the same rules included in the 2004 Drug Law Reform Act. Inmates will have the immediate right to appointed counsel to prepare and file the petition, and the right to appeal from adverse determinations.
[1] Also excluded from Willard eligibility are clients with prior violent felony convictions, whether or not qualifying as a predicate felony convictions, prior Class A felony convictions, and prior Class B non-drug convictions.
Michael Paul Attorney at Law
