
    The People of the State of New York, Plaintiff, v David Valentin, Defendant.
    Supreme Court, Criminal Term, Kings County,
    August 14, 1985
    APPEARANCES OF COUNSEL
    
      Julian R. Birnbaum for defendant. Elizabeth Holtzman, District Attorney (Mark A. Eskenazi of counsel), for plaintiff.
   OPINION OF THE COURT

Martin Schneier, J.

Does the 1984 amendment of Penal Law § 70.15, setting a six-month maximum sentence for most misdemeanors, apply to a defendant sentenced subsequent to the said amendment for crimes committed before the law went into effect?

The defendant, currently serving a nine-month sentence for the misdemeanor of unauthorized use of a vehicle, committed before the amendment of Penal Law § 70.15 took effect, moves for a resentence to a term of not more than six months’ imprisonment pursuant to that revision.

The facts here are not at issue. Indeed, the only issue this court must decide concerns the retroactive effect of the revised Penal Law § 70.15.

As a general rule, a statute is not retroactive (General Construction Law §§ 93, 94). Were the opposite true, a citizen would not only be presumed to know the law as it is, but would be compelled to guess correctly as to what the law will be.

Ameliorative modifications of penal statutes, however, have long been recognized as an exception to this rule (People v Roper, 259 NY 170; People v Oliver, 1 NY2d 152), since they often reflect the judgment of the Legislature that prior sanctions were "unduly harsh” (People v Oliver, 1 NY2d 152, 163, supra). A mere reduction of a sentence will not give a penal statute retroactive effect absent some indication of such a legislative judgment (see, People v Oliver, supra).

Neither the provisions of Penal Law § 70.15, nor its legislative history, reveals a legislative intention to cure undue severity. The amendment, which imposes a maximum six-month sentence for most misdemeanors (with sentences up to one year for certain enumerated misdemeanors and second offenders), was designed to eliminate the need for jury trials in most misdemeanor cases. (Memorandum of Legislative Representative of the City of New York, 1984 McKinney’s Session Laws of NY, at 3408, 3410.) Its purpose was to relieve the local criminal courts of a backlog (Governor’s approval memorandum, 1984 McKinney’s Session Laws of NY, at 3632), and not to lessen sentences for certain misdemeanors. Indeed, even before the amendment, few first-time offenders convicted of these misdemeanors ever received sentences in excess of six months (memorandum of State Executive Department, 1984 McKinney’s Session Laws of NY, at 3405, 3407).

Accordingly, the defendant’s motion is denied in all respects.  