| People v Williams |
| 2007 NY Slip Op 08617 [45 AD3d 1377] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v LinwoodWilliams, Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Jennifer L. Johnson of counsel), forrespondent.
Appeal from an order of the Onondaga County Court (William D. Walsh, J.), entered June21, 2006 pursuant to the 2005 Drug Law Reform Act. The order, among other things, granteddefendant's application for resentencing upon defendant's 2004 conviction of criminal possessionof a controlled substance in the second degree.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyreversed on the law and the matter is remitted to Onondaga County Court for further proceedingsin accordance with the following memorandum: Defendant appeals from an order pursuant to the2005 Drug Law Reform Act ([DLRA-2] L 2005, ch 643, § 1) granting his application forresentencing upon his 2004 conviction of criminal possession of a controlled substance in thesecond degree (Penal Law § 220.18 [former (1)]). We reject the contention of defendantthat County Court erred in failing to conduct a hearing on his resentencing application. Inappearing before the court in accordance with DLRA-2, both defendant and defense counselexplained to the court why resentencing was warranted, and we conclude under thecircumstances that the hearing requirement of DLRA-2 was met (see generally People v Figueroa, 21AD3d 337, 339 [2005], lv denied 6 NY3d 753 [2005]; People v McCurdy, 11 Misc 3d757, 759 [2006]; People vQuinones, 11 Misc 3d 582, 586 [2005]). We further conclude, however, that the courterred in failing to comply with DLRA-2 because it failed to set forth written findings of fact andthe reasons for its determination to impose a determinate term of 13½ years imprisonmentand a five-year period of postrelease supervision (see L 2005, ch 643, § 1). Inaddition, we conclude that the court erred in stating that the original sentence would stand beforeaffording defendant an opportunity to exercise his right to appeal and to withdraw his applicationfollowing that appeal (see id.). We therefore reverse the order and remit the matter toCounty Court to determine defendant's application in compliance with DLRA-2.Present—Scudder, P.J., Gorski, Centra, Fahey and Green, JJ.