serving time for 1990 first-time drug arrest in Albany County has chance
of freedom under modified drug laws
By ELIZABETH BENJAMIN, Capitol bureau
First published: Thursday, March 3, 2005
ELMIRA -- Not long ago, Lafayette Lewis had nothing but time.
Serving 25 years to life for a first time drug offense, good behavior
wasn't always his top priority. Maybe he mouthed off to the guards when
he got angry about perceived mistreatment. Why bother to be an angel?
He wasn't going anywhere soon.
But now Lewis, 37, is seeking resentencing under the modified Rockefeller
Drug Laws. Afraid of jeopardizing his shot at getting out early, his attitude
Lewis has retreated into himself. He hangs out less with friends, eschews
basketball games and works out alone.
The longer he waits for a judge's decision, the more chance something
could go wrong -- a fight, an infraction, an injury -- and his dreams
of release would be dashed.
"The waiting game is a mean thing," Lewis said during a recent
interview at the Elmira Correctional Facility. "There's nothing left
for me to do in prison. There's nothing here but trouble ... I should
be going home."
Lewis and two other men -- James Carter, one of Lewis' co-defendants in
1991, and Donald Green, imprisoned in 1989 on an unrelated charge -- are
the first to seek resentencing in Albany County under the newly revamped
Rockefeller Drug Laws.
Of the 446 offenders eligible for resentencing, 11 were originally sentenced
in Albany County and would have their terms reconsidered here.
Other offenders elsewhere in the state already have been released under
the restructured sentences signed into law by Gov. George Pataki last
December. Drug felons across New York are seeking the same treatment.
The local resentencing requests have an added nuance: Some view them as
the first political test for Democratic Albany County District Attorney
Soares last fall ousted his former boss, Paul Clyne, in an underdog campaign
focusing largely on reforming the Rockefeller Drug Laws.
As district attorney, Soares must either support or oppose resentencing
"He's got to say, 'Look, this guy has done too much time, please
let him out,' " said Randy Credico, director of the William Moses
Kunstler Fund for Racial Justice. "I'm sure (Soares) wants to do
the right thing, since he was elected on this issue."
It's tricky turf. If he opposes, some might say he broke a campaign promise.
If he helps let felons out of prison early -- especially those with violent
prior offenses -- it could be a political liability.
In a recent interview, Soares declined to address specific cases, but
discussed his philosophy.
"This is not a pass," Soares said. "We're not going to
hold the doors open for people. We're going to look at these cases to
ensure that folks who may be eligible to come out are ready to come out
and be productive and constructive members of society."
Soares said he will consider prison records, disciplinary charges, merits,
certificates and other accomplishments, as well as the original sentences,
before making a decision on each case.
Green drew 25 years to life. He had no prior criminal history, according
to the state Department of Correctional Services.
Carter, serving 12 years to life, was in prison three times before he
was arrested with Lewis in 1990 -- once for robbery and assault, the second
time for grand larceny and the third for violating parole.
Lewis was convicted of attempted possession of a weapon when he was 18,
and served a year in Auburn Correctional Facility. Carter and Lewis were
prosecuted in 1991 by Clyne, then an assistant district attorney. The
two men, and a third, Desmond Brinson (whose name is now Abdul Siddiq),
were pulled over for speeding Sept. 9, 1990, on the Thruway. The officer
found a bag with more than 4 ounces of cocaine.
Lewis insisted the drugs were not his. He said he was in the car because
he needed a ride back to Niagara Falls from Woodbury, Orange County, where
he had played in a basketball game.
Clyne intimated that perhaps Lewis was not innocent.
"After they were convicted, police from Niagara Falls called and
said: 'Thank you, thank you, thank you,' " Clyne said.
In Clyne's view, Carter, in particular, deserved the maximum sentence
due to his prior offenses. "That's not a good success story,"
he said, wryly.
Carter, Lewis and Green appeared last Friday before Albany County Court
Judge Thomas A. Breslin for an initial hearing, in which the judge said
he wanted to move the process along speedily. Stressing that the outcome
of Lewis' appeal is yet to be decided, Breslin said, "I don't think
it's fair with the possibility that he may be eligible for immediate release
for us to allow any delay."
Green and Carter have public defenders; Lewis is represented by Margaret
Ratner Kunstler, an attorney and wife of the late radical defense lawyer,
The weapon that led to Lewis' first arrest was a .22-caliber handgun.
Lewis doesn't deny he had the gun on him the day an officer stopped him
while he was walking the streets of Niagara Falls. The "attempted"
charge was a plea. But he played down the incident.
"I was just a stupid kid," Lewis said. "I just wanted to
be like everybody else. Nobody got hurt."
The 1973 Rockefeller Drug Laws mandated sentences up to life for the sale
or possession of relatively small amounts of narcotics. It wasn't long
before critics said the laws were too harsh and weren't stemming the use
or sale of drugs.
Yet change took decades of debate. Many feel last year's changes didn't
go far enough.
Only the highest level drug felons, Class A-1 offenders, can retroactively
appeal under the new sentence structure, which calls for sentences of
between 8 and 25 years -- down from the mandatory minimum of 15 years
to life. A-1 offenders with violent prior felonies can also be resentenced,
but with a higher range of 15 to 30 years.
First-time offenders sentenced under the restructured laws 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.
The new laws allow lower level, Class B offenders -- the majority of drug
felons in New York's prisons -- to reduce their sentences with increased
merit time for completing drug rehabilitation programs, for instance,
or getting a GED. They cannot seek resentencing under the new laws, but
many don't understand that and are flooding district attorneys, drug law
advocates and judges with resentencing requests.
"There is a lot of confusion out there," said William Gibney,
senior attorney for the special litigation unit of the Legal Aid Society's
criminal defense division.
Lewis said he finds the new laws slightly unfair, but, then again, he
has long been struck by the unfairness of how New York deals with drug
"I've seen guys with rape charges come and go and come back for the
same thing; even some of the most violent guys have left me," he
When Lewis started his 25-years-to-life term, he was a tall, skinny kid,
he said. Now he carries 225 pounds on his 6-4 frame. He wears silver-rimmed
glasses and sports a trim goatee.
In prison, Lewis completed a wide range of programs -- from substance
abuse to nonviolent conflict resolution to food service training. He received
an associate's degree in liberal arts from Corning Community College.
He talks of going into business for himself -- possibly selling clothing
-- if he is released.
Lewis is one of 11 children raised by a single mother, who still lives
in Niagara Falls. A brother, Vincent, lives in Albany and
said the family is eager to help Lafayette Lewis.
"We know we need to be vigilant to help him be successful,"
said Vincent Lewis, 40, who works at Parsons Child and Family Center.
"He has a lot of support. ... He's not going to be alone."
In an interview with the Times Union, Lewis said he'll be happy even if
his sentence is simply reduced and he gets out slightly earlier than he
expected. His earliest parole eligibility date is March 2007.
"I've learned you got to have patience in here, 'cause don't nothing
come right away," Lewis said. "Everything takes time.
... I don't want to get too happy and (mentally) stop doing the time,
because there might be more to do. But anything less than 25-to-life is