People v. Mansell

79 A.D.2d 582, 434 N.Y.S.2d 352, 1980 N.Y. App. Div. LEXIS 13911

Opinions

Judgment, Supreme Court, New York County, rendered June 29, 1979, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the first degree (former Penal Law, § 220.21) and imposing an indeterminate sentence of from two years to life, modified, on the law, to vacate the sentence, the ease remanded for resentencing, and otherwise affirmed. The sentencing of defendant convicted of an A-I felony to an indeterminate prison term of from two years to life imprisonment violated section 70.00 (subd 3, par [a], cl [1]) of the Penal Law, which was then applicable and required a minimum period of not less than 15 years. This is not the rare case on its particular facts which might justify finding that the applicable sentencing provision was unconstitutional as applied to this defendant. However, we note that within three months of the sentence, the law was changed so that the weight requirement for an A-I felony was increased from 2 to 4 ounces and the mandatory minimum for an A-II felony (the category into which defendant would then fall in that he possessed approximately 2.7 ounces) was lowered to three years. Under these circumstances, and in light of the sentiment expressed by the sentencing court, we note that upon being resentenced, defendant as one incarcerated under an A-I narcotic sentence may seek executive clemency from the harsh sentencing consequences operating herein (see Hechtman, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 60.09, Cumulative Annual Pocket Part, p 56). Concur—Sullivan, Markewich, Lupiano and Silverman, JJ.