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There have been significant changes to the antiquated Rockefeller sentencing statutes with regard to narcotics cases in 2004, 2005 and in 2009. The new laws give most drug felony convicts the right to petition the original sentencing court to be re-sentenced under the new sentencing guidelines. The laws and eligibility requirements can be complicated to navigate through successfully. It is important to consult with and seek out the assistance of an attorney when attempting to petition the court to be re-sentenced under these new laws.

Below is a summary of the 2004, 2005 and 2009 Drug Law Reform Acts.

The 2004 Drug Law Reform Act

The 2004 Drug Law Reform Act was the first step in reforming the old Rockefeller laws. The new law changed the sentencing guidelines for drug cases in that it made all felony drug sentences determinate instead of indeterminate. Thus, a sentence will no longer have a minimum and maximum term (such as 2 to 4 years or 5 to 10 years), but will be a flat term of imprisonment (2 years or 4 years). This was especially significant for the A-I and A-II drug felonies.

The new law doubled the weight for Class A-I felony of criminal possession of a controlled substance in the first degree under Penal Law §220.21 from four to eight ounces, and for Class A-II felony criminal possession of a controlled substance in the second degree under Penal Law §220.18 from two to four ounces. THe weight thresholds for drug sale offenses, however, remain the same.

THe 2004 Drug Law Reform Act only extended the possibility of re-sentencing to those convicted of A-I felonies, but those convicted of Class A-II or lesser felonies, under the 2004 Drug Law Reform Act were not eligible for re-sentencing.

The 2004 Act gave anyone serving an A-I drug felony sentence the right to petition for re-sentencing. The re-sentencing petition is always sent back to the judge who did the original sentence unless that judge is unavailable.

In re-sentencing the court can consider any facts or circumstances relevant to the imposition of a new sentence, including the inmate’s institutional record. No new pre-sentence report will be ordered so it is up to the attorney representing the inmate to investigate and gather all the information and records that support re-sentencing.

The court must bring the inmate before it and it may hold a hearing on any controverted issues of fact relevant to re-sentencing. Re-sentencing is not automatic. The court may deny re-sentencing if "substantial justice dictates".

The court must offer the inmate an alternative sentence to the one they are now serving and the inmate will have the option to accept or reject the new determinate sentence.

Whether the inmate accepts or rejects the new sentence they will have the right to appeal the judge’s offer on the grounds of harsh and excessive sentencing.

The 2005 Drug Law Reform Act

In 2005 the New York State legislature passed the 2005 Drug Law Reform Act which extended discretionary re-sentencing to those convicted of Class A-II drug felonies.

Eligibility Criteria For Re-Sentencing

An inmate must be more than three years for their court imposed minimum term of imprisonment in order to be eligible.

The law also requires that the inmate meet the eligibility requirements for Merit time under the Corrections Law. The inmate does NOT have to have already earned the Merit time, it only requires that the inmate be eligible.

The Merit time requirement excludes certain inmates from re-sentencing if they are serving time for other convictions, such as any non-drug Class A-I felony, a violent felony, a sex offense, vehicular manslaughter in the first or second degree, manslaughter in the second degree, criminally negligent homicide and aggravated harassment of an employee by an inmate.

The 2009 Drug Law Reform Act

The 2009 Drug Law Reform made several sweeping changes for those convicted of drug felonies in New York.

The new law authorizes discretionary re-sentencing for inmates convicted of Class B drug offenses committed before January 13, 2005. Those serving indeterminate terms with maximum terms of more than 3 years can petition the court for re-sentencing. Additionally, an inmate convicted of a Class C, D or E drug or marijuana offense can petition for re-sentencing.

Other important aspects of the new law are imprisonment is no longer mandatory for convictions for Class B drug felonies and the new law eliminates the need to have the District Attorney’s consent for the Willard program on certain D felonies.

The most important part of the new law is the Judicial Diversion programs whereby the 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 the consent of the District Attorney. A plea of guilty is generally required to enter into a Judicial Diversion program, but under exceptional circumstances the court may order Judicial Diversion without a guilty plea.