Drugs
New Rockefeller Drug Reform Law (2009)
On April 7th 2009, Governor Paterson signed the New Rockefeller Drug Reform Law. You or your loved one’s case may be drastically affected. The Legislature has enacted historic revisions to the Rockefeller Drug Laws as part of the 2009-2010 budget. Many of these changes are effective immediately, and apply to pending cases where sentence was not pronounced before April 7, 2009.
IF YOU BELIEVE ONE OF THESE CHANGES BELOW AFFECTS YOU OR YOUR LOVED ONE, CALL 212.564.2440 or email
paul@petruslaw.com for a free consultation.
Who and What This Will Effect:
First Felony Drug & Marijuana Offenses
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Class B:
- Imprisonment is no longer mandatory – 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 be directly placed in the Willard drug treatment program as part of a sentence of parole supervision (see CPL § 410.91).
- The court may also order the client directly placed in the SHOCK incarceration program. Note: a separate section of the bill (Part L) increases the maximum age for SHOCK placement to 50 (from 40).
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Class C, D and E:
- Imprisonment will continue to be discretionary, not mandatory.
- All non-incarcerative dispositions are authorized (e.g., probation, split sentences) as are local jail terms.
- The sentencing court may order the client directly placed in the SHOCK incarceration program.
- The legislation 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 Felony Offenders (with non-violent prior felony conviction)
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Class B:
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Imprisonment is required unless the client is diverted for drug or alcohol treatment pursuant to new section 216 of the Criminal Procedure Law.
- 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 for six months. Therefore, adjournments will be necessary for current clients who wish to avail themselves of the diversion option. Interim probation supervision is one way to secure the necessary adjournment.
- A separate section of the bill (Part O) authorizes sentence credit for time served on interim probation against a sentence of probation.
- The minimum state prison sentence for Class B second felony drug offenders (with a prior non-violent felony) is reduced from 3 years to 2 years. The maximum remains 12 years.
- 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.
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Class C, D and E:
- Imprisonment is not required
- All non-incarcerative dispositions are authorized, including judicial diversion pursuant to CPL § 216.
- Willard placement without DA consent, and judicial SHOCK placement are available sentencing options.
Additional Information About the New Rockefeller Drug Reform Law:
Judicial Diversion Program (Effective October 2009)
- Court is authorized to divert most drug and marijuana offenders (Class B through E, including second felony drug offenders) with an identified alcohol or substance abuse problem 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 (see CPL § 410.91).
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After ordering and receiving an alcohol and substance abuse evaluation, the court must make findings with respect to whether:
- the defendant is statutorily eligible for diversion;
- the defendant has a history of alcohol or substance abuse or dependence;
- such alcohol or substance abuse or dependence is a contributing factor to the defendant’s criminal behavior;
- the defendant’s participation in judicial diversion could effectively address such abuse or dependence; and
- institutional confinement of the defendant is or may not be necessary for the protection of the public.
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Excluded from diversion eligibility are:
- second felony drug offenders with predicate violent felony offense convictions;
- clients with a conviction for a merit time ineligible offense within the preceding 10 years (generally sex and homicide offenses, see Corr. Law § 803 (1) (d)(ii);
- clients with a Class A felony drug conviction within the preceding 10 years;
- clients who have ever been adjudicated a second violent felony offender or a persistent violent felony offender.
- 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.
Conditional sealing of records upon completion of judicial diversion or similar drug treatment program (Effective June 2009)
- Courts are authorized to conditionally seal records of drug, marijuana and Willard-eligible non-drug crimes (see CPL §410.91) 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 unless the criminal action terminates in the defendant’s favor pursuant to CPL § 160.50 or results in a non-criminal disposition pursuant to CPL § 160.55.
Resentencing of inmates convicted and sentenced to indeterminate terms under former law (Most provisions effective October 2009)
- Authorized 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 “more than 3 years” (e.g., 2 – 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 “which 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.
Excluded from resentencing eligibility are:
- Inmates who are serving time for or have been convicted within the preceding 10 years, as measured from the date of the resentencing application, of a violent felony, or a merit-time ineligible offense [see Corr. Law § 803 (1) (d) (ii)];
- Inmates who were ever adjudicated a second violent felony offender or a persistent violent felony offender.
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