Senator Montgomery Speaks Out in Support of Rockefeller Drug Law Reform

April 09, 2009

Dear Advocates,

Below is a link to a YouTubevideo featuring Senator Montgomery delivering  passionate remarks on the Senate floor in support of Rockefeller Drug Law reform.This bill was adopted by the Legislature as part of the 2009-10  State Budget. Senator Montgomery is a co-sponsor of this bill and a long-time advocate for reforming the draconian drug laws.

April 2009

 Prison Sentences and Alternative Sentences All first-time drug offenders (class E through class B felonies) would be probation eligible (and diversion eligible) except those convicted of the new sales to a child crime.All second-time drug offenders with no prior violent felony offence convictions (except second B’s and A’s who are all ineligible for probation) would be probation eligible.The minimum mandatory sentence for a 2d class B felony offense would be reduced to 2 years rather than 31/2 years and the 2d B would be eligible for diversion (discussed below) and shock.The minimum sentence for 2d class C felony offense would be 11/2 years rather than 2 years and the 2d C would be probation eligible as well as diversion eligible. New Crimes

A new crime called “Criminal sale of a controlled substance to a child” is created making it a class B felony (ineligible for probation) to sell a controlled substance to a child under 17 years of age if the seller is over 21 years of age. 

A new crime called “Operating as a major trafficker” is created making it a class A-1 felony to direct a controlled substance organization (newly defined in the statute as being one of 4 or more people engaged in the enterprise of selling drugs) and earning $75,000 from such sales over a one-year period, or being an individual who actually earns


$75,000 from such sales over a 6-month period (excluding from the law so-called “mules”, employees, those who perform such acts as an “accommodation” for another thereby limiting the coverage of the new law to the individual who actually will make a large sum of money and eliminating some of the harsher unintended consequences of the Rockefeller Drug Laws.)


Judicial Diversion

There is a statutorily defined, uniform drug diversion program available for implementation along with maintaining existing DA sponsored DTAP programs.All first, second and subsequently felony drug offenders would be eligible.Those with past or current merit time excludable convictions such as violent felony offenders and sex offenders would not be eligible.YO’s based on violent crimes or merit time excludable offenses committed in the prior ten years could also be diverted but the prosecutor may object and ask the court to deny diversion; the diversion would be left in the court’s discretion.Eligibility is broad so that offenders (subject to exclusions) who are evaluated and assessed as suffering from alcohol or substance abuse or any co-occurring mental disorder or mental illness would be eligible.The court would have the discretion to consider many factors in granting diversion including, but not limited to, whether an alternative to institutional confinement is or may not be necessary for the protection of the public.A guilty plea to an indictment or SCI, in many instances, will be required to participate in judicial diversion.The judge has discretion to waive the guilty pleas where there are exceptional circumstances and severe collateral consequences are likely to result upon the entry of such a plea.  (Although not enumerated in the statute, these would include negative immigration consequences, and negative housing, educational, family and unemployment consequences, among others.)Information given to treatment providers would be kept confidential consistent with federal law so that treatment receives priority.Diversion would operate with maximum judicial discretion in determining whether an offender violates the terms of diversion and how compliance is measured.Upon violation of the conditions of diversion, the offender could be sentenced to anywhere from the maximum allowable term of imprisonment to probation or a minimum term of one day in jail.Upon completion, a guilty plea can be withdrawn and all options are open.  The court may also impose an additional period of interim probation.Sealing is also available to those who complete diversion (see below). 

Use and Role of Drug Courts with Diversion

OCA would assign cases eligible for judicial diversion to those courts best prepared to handle them so that discretion as to which courts would hear and monitor such cases would be left to the court system, although by the nature of such programs, drug courts would be the preferred venue. 

Conditional Sealing

Convictions of offenders could be sealed for those who pass through the diversion program or similar judicially sanctioned drug treatment programs.The court on its own motion or on the defendant’s motion (with notice to the district attorney and the court of the county or counties in which the defendant was convicted) could seal up to 3 previous drug or marijuana misdemeanors and the controlled substance felony which led to participation in the diversion program.Public safety, among other factors, including the seriousness of the offense and the defendant’s criminal history, would be considered by the court in granting or denying sealing.Only the defendant, law enforcement agencies, gun licensing authorities and police departments and peace officer agencies in the course of considering the employment of such individual would have access to these records. 



Existing B offenders (who were sentenced before January 30, 2005) can ask the court that imposed sentence to resentence him or her (on motion with notice to the district attorney), except those who are convicted of offenses that are ineligible for merit time or who are second violent felony offenders or are persistent felony offenders.The parole board would also have to consider the new sentencing changes enacted in this chapter and prior modifications to the drug laws as offenders who are in prison pursuant to an indeterminate sentence under the old Rockefeller Drug Laws come up for parole. 

Shock Incarceration Expansion

Shock incarceration eligibility in DOCS is expanded.A judicial shock program is established whereby a judge can order a defendant directly into the shock program or order that they can be placed in shock once they are within 3 years of their release date.  Additionally, an inmate sentenced to shock who otherwise qualifies for inclusion in the program, but for his/her physical inability to participate, can be placed in an alternative program and will be eligible for release upon completion in the same manner as provided for in the shock program. 

Availability of Drug Treatment in DOCS

OASAS will monitor those programs in DOCS that provide alcohol and substance abuse treatment and establish guidelines for those programs.Other Sentencing Modifications

Willard sentence of “parole supervision” is expanded to include those convicted of burglary in the 3rd degree and first time class B and second class C controlled substance offenders.CASAT program in DOCS expanded to enable second felony drug offenders to be released from the program sooner. Treatment Funding

Through Byrne/JAG funding initiatives and other sources of funding, treatment is provided to meet the needs of this reform.