| People v Lawrence |
| 2011 NY Slip Op 00300 [80 AD3d 1011] |
| January 20, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Richard W.Lawrence, Appellant. |
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Stein, J. Appeal from a judgment of the County Court of Franklin County (Main, Jr., J.),rendered October 5, 2009, which revoked defendant's probation and imposed a sentence ofimprisonment.
In June 2004, defendant waived indictment and, pursuant to a superior court information,pleaded guilty to criminal possession of a controlled substance in the fifth degree. Defendant wassentenced to, among other things, five years of probation with the first 180 days to be served inthe Franklin County jail. Thereafter, in July 2005, supervision of defendant's probation wastransferred to Clinton County, where defendant was then residing, but County Court (FranklinCounty) retained jurisdiction over the matter. A declaration of delinquency subsequently wasfiled in Franklin County and, ultimately, defendant admitted violating the terms of his probation,waived his right to appeal and was sentenced in October 2009 to a prison term of 1 to 3 years.This appeal ensued.
The crux of defendant's argument on appeal is that a 2007 amendment to CPL 410.80operated to divest County Court of jurisdiction and, therefore, defendant's 2009 sentence must bevacated. We disagree.
Preliminarily, we reject the People's contention that defendant's challenge to County [*2]Court's jurisdiction was encompassed by his waiver of appeal or,alternatively, that defendant waived this issue by failing to object at the time of arraignmentand/or sentencing. An alleged defect in subject matter jurisdiction "may be raised at any time byany party or by the court itself" (Burke vAspland, 56 AD3d 1001, 1003 [2008], lv denied 12 NY3d 709 [2009]; see Johnson v New York State, 71AD3d 1355 [2010], lv denied 15 NY3d 703 [2010]). Hence, defendant's argument isproperly before us.
Turning to the merits, CPL 410.80 was amended in 2007 to provide, in relevant part, thatwhere supervision of a defendant's probation is transferred to another county, the appropriatecourt within the jurisdiction of the receiving probation department shall, upon completion of thetransfer, "assume all powers and duties of the sentencing court and shall have sole jurisdiction inthe case" (CPL 410.80 [2]). Although the transfer of defendant's probation here occurred prior tothe statutory amendment and at a time when County Court was vested with the discretion toretain jurisdiction,[FN*]defendant argues that the statute is entitled to retroactive effect.
"It is well settled . . . that a statute will not be given a retroactive constructionunless an intention to make it retroactive is to be deduced from its wording, and a law will notreceive a retroactive construction unless its language, either expressly or by necessaryimplication, requires that it be so construed. A clear expression of the legislative purpose isrequired to justify a retrospective application" (McKinney's Cons Laws of NY, Book 1, Statutes§ 51, at 89). In our view, neither the language of CPL 410.80 nor the relevant legislativehistory evidences a clear expression of legislative intent to apply the statutory amendmentretroactively. Moreover, even accepting defendant's premise that the amendment was remedial innature, thereby constituting an exception to the general rule (see McKinney's Cons Lawsof NY, Book 1, Statutes § 54), we are not persuaded that the exception is applicable hereas it would operate to divest a sentencing court of jurisdiction it otherwise validly retained(see McKinney's Cons Laws of NY, Book 1, Statutes § 54).
Peters, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Prior to the effective date of theamendment, the sentencing court had the option of retaining its "powers and duties" over theincidents of the sentence (CPL 410.80 former [2]; see Preiser, 2010 Supp PracticeCommentaries, McKinney's Cons Laws of NY, 2010 Electronic Update, CPL 410.80).