People v. Rivera

72 A.D.2d 610, 421 N.Y.S.2d 120, 1979 N.Y. App. Div. LEXIS 13738

Opinion

Appeal by defendant, as limited by his brief, from two sentences of the Supreme Court, Kings County, both imposed August 1, 1978, upon his convictions of two counts of criminal sale of a controlled substance in the second degree, on his pleas of guilty, the sentences being two concurrent terms of imprisonment of from six years to life. Sentences affirmed without prejudice to an application to Criminal Term in accordance with section 60.09 of the Penal Law. The defendant asks for a reduction of his sentences. He was sentenced to two concurrent terms of imprisonment of from six years to life pursuant to two judgments, each convicting him of criminal sale of a controlled substance in the second degree, class A-II felonies. Pursuant to section 70.00 (subd 3, par [a], cl [ii]) of the Penal Law, prior to its amendment (L 1979, ch 410, § 6), such sentences were the minimum permissible. The amendment, effective September 1, 1979, provides for a lesser minimum sentence and for a resentencing procedure for certain persons convicted of specified controlled substance offenses (see Penal Law, § 60.09, L 1979, ch 410, § 3). Aside from the resentencing procedure, section 29 of chapter 410 of the Laws of 1979 requires this court to construe and punish the instant offenses according to the provisions of law existing at the time of the commission of the offenses "in the same manner as if this act had not been enacted”. Accordingly, defendant’s exclusive remedy is to apply to Criminal Term for resentencing in accordance with the provisions of section 60.09 of the Penal Law. Hopkins, J. P., Damiani, Cohalan and Gibbons, JJ., concur.