The Appellate Division continued in relevant part: Because defendant will be resentenced, she has yet to incur a penalty within the meaning of the savings statute. The new mitigating factor has been in force for months, as it “took effect immediately.” Therefore, defendant must be allowed to argue its applicability at her resentencing.
A retroactivity analysis, relevant or not, reaches the same conclusion. “The overriding goal of all statutory interpretation ‘is to determine as best we can the intent of the Legislature, and to give effect to that intent.'” State v. S.B. (2017) (quoting State v. Robinson (2014)). “When the Legislature does not clearly express its intent to give a statute prospective application, a court must determine whether to apply the statute retroactively.” State v. J.V. (2020) (quoting Twiss v. Dep’t of Treasury (1991)).
“Generally, new criminal statutes are presumed to have solely prospective application.” Ibid. Here, the plain language of the Assembly Bill provided that “this act shall take effect immediately.” L. 2020, c. 110 (eff. Oct. 19, 2020). This “clearly expresses legislative intent to give the statute prospective application.” The plain wording, however, offers no additional guidance, because in this case the question is less straightforward–does the statute apply to a defendant who, for reasons unrelated to the statute, is being resentenced.
For the sake of argument, even if we were to consider application of the factor “retroactive” simply because it was not in effect when defendant was sentenced the first time, it should be included. Among the recognized exceptions to the presumption against retroactive application of a law is that “the statute is ameliorative or curative.” Gibbons v. Gibbons (1981)). “Under this exception . . . the term ‘ameliorative’ refers only to criminal laws that effect a reduction in a criminal penalty.” State in Interest of J.F. (App. Div. 2016). “The ameliorative amendment must be aimed at mitigating a legislatively perceived undue severity in the existing criminal law.” Kendall v. Snedeker (App. Div. 1987). Ameliorative is defined as “to make better or more tolerable.” It is a term most often used in medicine.
