| People v Braithwaite |
| 2009 NY Slip Op 04255 [62 AD3d 1019] |
| May 26, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v James Braithwaite, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen ofcounsel), for respondent.
Motion by the appellant for leave to reargue an appeal from an order of the Supreme Court,Kings County, dated November 9, 2005, which was determined by decision and order of thisCourt dated December 23, 2008.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, itis,
Ordered that the motion is granted, and upon reargument, the decision and order of thisCourt dated December 23, 2008, is recalled and vacated (see People v Braithwaite, 57 AD3d 913 [2008]), and the followingdecision and order is substituted therefor:
Appeal by the defendant from an order of the Supreme Court, Kings County (Demarest, J.),dated November 9, 2005, which denied his motion for resentencing pursuant to the Drug LawReform Act of 2004 (L 2004, ch 738) on his conviction of criminal possession of a controlledsubstance in the first degree, criminal possession of a controlled substance in the third degree,and criminal possession of a weapon in the third degree (two counts), which sentence wasoriginally imposed, upon a jury verdict, on October 3, 1985. Presiding Justice Prudenti has beensubstituted for former Associate Justice McCarthy (see 22 NYCRR 670.1 [c]).
Ordered that the order is reversed, on the law, and the matter is remitted to the SupremeCourt, Kings County, for a new determination of the defendant's motion for resentencing inaccordance herewith.
In 1985 the defendant was charged with criminal possession of a controlled substance in thefirst degree (hereinafter the 1985 possession count) and other offenses. Upon his conviction, thedefendant was sentenced to an indeterminate term of imprisonment of 17 years to life on the1985 [*2]possession count. On the same day, the defendant wassentenced for offenses charged in two 1983 indictments. With respect to those convictions, thedefendant was sentenced, as a persistent felony offender, to indeterminate prison terms of 15years to life and 17 years to life.
In 2005 the defendant moved for resentencing on the 1985 possession count pursuant to theDrug Law Reform Act of 2004. In denying the defendant's motion, the Supreme Court notedthat, since the defendant was serving sentences of imprisonment with maximum terms of life inconnection with the 1983 indictments, resentencing the defendant to a determinate prison term of15 years on the 1985 possession count would have "no practical effect" upon the aggregatesentence the defendant would ultimately serve. It was subsequently determined, however, thatthe defendant had been improperly adjudicated a persistent felony offender, and he wasresentenced in connection with the 1983 indictments to indeterminate prison terms of 10 to 20years and 7½ to 15 years.
Since the factors relied upon by the Supreme Court in denying the defendant's motion forresentencing included a " ' "materially untrue" assumption[ ] or "misinformation" ' " (Peoplev Naranjo, 89 NY2d 1047, 1049 [1997], quoting United States v Pugliese, 805 F2d 1117,1123 [1986], quoting Townsend v Burke, 334 US 736, 741 [1948]), the matter must beremitted for a new determination of the defendant's resentencing motion (see United States vTucker, 404 US 443 [1972]; People v Mercado, 200 AD2d 424 [1994]; People vParks, 186 AD2d 416 [1992]; United States v Stein, 544 F2d 96 [1976]). The motionshould be granted unless "substantial justice dictates that [it] should be denied" (L 2004, ch 738,§ 23; see People v Beasley,47 AD3d 639 [2008]; People vArana, 32 AD3d 305 [2006]). Prudenti, P.J., Skelos, Santucci and Dickerson, JJ.,concur.