| People v Subgidio |
| 2008 NY Slip Op 08518 [56 AD3d 496] |
| November 5, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kelvin Subgidio, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Argiro Kosmetatos and Elana L.Yeger of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Rockland County (Kelly, J.),dated April 12, 2005, which denied his motion for resentencing pursuant to the Drug LawReform Act of 2004 (L 2004, ch 738) on his conviction of criminal sale of a controlled substancein the third degree (three counts) and criminal possession of a controlled substance in the thirddegree (three counts), which sentence was originally imposed, upon a jury verdict, on October22, 1999.
Ordered that the order is affirmed.
The defendant was convicted of three counts of criminal sale of a controlled substance in thethird degree and three counts of criminal possession of a controlled substance in the third degree,all class B felonies, for acts committed in 1998 and 1999, and he was sentenced in 1999.Contrary to the defendant's contention, he is not entitled to be resentenced in accordance with theDrug Law Reform Act of 2004 (L 2004, ch 738) (hereinafter the 2004 DLRA) pursuant to theamelioration doctrine (see People v Behlog, 74 NY2d 237, 240 [1989]) because theLegislature manifested a specific intent that the ameliorative sentencing provisions contained inthe 2004 DLRA were only to be applied prospectively and, in any event, the doctrine does notapply to those sentenced before the effective date of an ameliorative enactment (see People v Utsey, 7 NY3d 398,403-404 [2006]). Although the 2004 DLRA and subsequent legislation contain provisionsauthorizing certain qualified inmates to apply for resentencing in accordance with the terms of[*2]the legislation, those provisions only apply to defendantsconvicted of class A-I or class A-II felonies (see L 2004, ch 738, § 23; see alsoL 2005, ch 643, § 1; People vSavage, 29 AD3d 1022 [2006]). Lifson, J.P., Santucci, Balkin and Belen, JJ., concur.