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January 13, 2005 - The New York Times (NY)

Easing Of New York Drug Laws Takes Effect

By Leslie Eaton

Return to Drug War News: Don't Miss Archive

As a new law meant to ease the effects of New York's strict drug laws goes into full effect today, prosecutors, defense lawyers, prisoners and their families are still struggling to figure out how the complex law will work, whom it will help and how soon. One thing they all agree on is that the process is only beginning.

Outside Poughkeepsie, Thomas J. Whalen is trying to make sure that asking a court for a new sentence will be the fastest route to freedom for his longtime client, Roberto Charris, who has been in prison since 1989 serving a 20-year sentence for drug possession.

Near Niagara Falls, Miguel Ortiz Garcia is looking for help in determining whether the new law will affect his sister, Lydia Ortiz, given the complications of her case ( among other things, she fled before her trial, was convicted in absentia and is now serving a sentence of 25 years to life ).

And in Manhattan, where the drug laws appear likely to be a political issue in the race for district attorney this fall, prosecutors are reviewing files to see which prisoners they will fight to keep incarcerated.

The new law, signed by Gov. George E. Pataki last month, reduces the mandatory sentences enacted in 1973 at the behest of Gov. Nelson A. Rockefeller. Now, rather than a mandatory sentence of at least 15 years to life, first-time offenders could get as little as eight years and, depending on their circumstances, could be out of prison in less than four years on work-release.

Prisoners who were sentenced to the longest terms can also ask to be resentenced under the new rules. In theory, at least, that could mean immediate release for some of the 446 prisoners, known as A-1 offenders.

These prisoners "want to get out that day," said Randy Credico, director of the William Moses Kunstler Fund for Racial Justice, which organized prisoners' families to lobby for changing the drug laws. He said he was being flooded with letters from convicts seeking help and advice on getting out of prison as soon as possible, some from lower-level offenders who are not eligible for resentencing.

The procedures required by the new law are complex and may end up being time-consuming, prosecutors and defense lawyers say. A prisoner with a previous conviction for committing a violent felony, for example, could actually receive a longer sentence.

A resentencing could also involve a protracted set of hearings, especially if the district attorneys who won the original convictions oppose granting shorter sentences. There may be disputes over whether an offender was really a low-level dealer or addict who happened to be caught with a large amount of drugs - the people the new law is supposed to help - or was really a big-time dealer or distributor.

So in at least a few cases, like that of Mr. Whalen's client, Mr. Charris, there is the possibility that applying for parole might result in a faster release than a resentencing.

"Some cases will move pretty quickly, but others are a little more complicated, and we'll have to take our time with them," said Alfred A. O'Connor, a lawyer with the New York State Defenders Association, which is advising public defenders outside New York City on how to handle resentencing cases. "There's a lot of excitement right now," he added, "but the feeling is, let's do it right" rather than fast.

Last month, the State Department of Correctional Services posted a memo on the new law in its prisons and made copies available to interested inmates and their lawyers; yesterday, it started distributing a Spanish-language version of the memo.

Some prisoners have already filed resentencing motions without waiting for a lawyer; the city's special narcotics prosecutor, Bridget G. Brennan, said her office had received three of these.

Robert M. Morgenthau, the Manhattan district attorney, said his staff was checking case files and reviewing grand jury minutes to decide how to respond to requests for resentencings. As a policy, his office generally did not charge first-time offenders with the crimes carrying the stiffest sentences, he said, so "we have very few that come under the rubric of overly harsh."

Leslie Crocker Snyder, a former judge who is expected to run against Mr. Morgenthau this fall, has criticized him for being slow to come out against the drug laws, which he did last March. Now that he has, he was asked yesterday, might he not be criticized for opposing resentencings?

"Free country," Mr. Morgenthau said.

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