People v Smith, 2005 NY Slip Op 08861 [23 AD3d 280]

November 22, 2005

Appellate Division, First Department

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Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered February 1, 2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3½ years, unanimously modified, on the law, to the extent of vacating the sentence and remanding to Supreme Court for resentencing in accordance with the decision herein, and otherwise affirmed.

Defendant committed this crime before the effective date of the Drug Law Reform Act (L 2004, ch 738) but was sentenced after that date. The sentencing court erred when it invoked the amelioration doctrine of People v Behlog (74 NY2d 237 [1989]) to give defendant the benefit of the reduced penalty contained in the new law. We have concluded that for purposes of the Drug Law Reform Act, the Legislature intended to negate the amelioration doctrine ( People v Nelson , 21 AD3d 861 [2005]). Accordingly, we remand for resentencing in accordance with the law applicable at the time of the crime. Concur—Tom, J.P., Andrias, Sullivan, Gonzalez and Malone, JJ.