| People v Williams |
| 2009 NY Slip Op 07011 [66 AD3d 1440] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v LinwoodWilliams, Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Jodi A. Danzig of counsel), forrespondent.
Appeal from an order of the Onondaga County Court (William D. Walsh, J.), entered March28, 2008 pursuant to the 2005 Drug Law Reform Act. The order, inter alia, granted defendant'sapplication for resentencing upon defendant's 2004 conviction of criminal possession of acontrolled substance in the second degree and specified the sentence that would be imposed.
It is hereby ordered that the order so appealed from is unanimously affirmed and the matteris remitted to Onondaga County Court for further proceedings in accordance with the followingmemorandum: Defendant appeals from an order pursuant to the 2005 Drug Law Reform Act([DLRA-2] L 2005, ch 643, § 1) granting his application for resentencing upon hisconviction of criminal possession of a controlled substance in the second degree (Penal Law§ 220.18 [former (1)]) and specifying that County Court would impose a determinatesentence of 13½ years plus a period of postrelease supervision of five years. We previouslyreversed an order granting defendant's application for resentencing, and we remitted the matter toCounty Court to determine defendant's application in compliance with DLRA-2 (People v Williams, 45 AD3d 1377[2007]).
We reject defendant's contention that the proposed new sentence is harsh and excessive. Thecourt, upon remittal, properly set forth in its decision the reasons for the proposed new sentence,taking into consideration the magnitude of the crime, defendant's prior criminal history, theadvantageous terms of the plea bargain, defendant's arrest on new drug charges after beingreleased on bail pending sentencing, and any efforts toward rehabilitation made by defendantduring his incarceration (see generallyPeople v Boatman, 53 AD3d 1053 [2008]). We thus conclude that the court properlyexercised its discretion in determining the length of the proposed new sentence. We further rejectdefendant's contention that the proposed new sentence was unauthorized as a matter of law. Evenassuming, arguendo, that defendant's contention is properly raised on an appeal from aspecifying order (see L 2005, ch 643, § 1), we conclude that the proposed newsentence falls within the sentencing parameters of Penal Law § 70.71 (4) (b) (ii).
We reject the further contention of defendant that the court erred in denying his motion forrecusal. "Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the solearbiter of recusal . . . [and a] court's decision in this respect may not be overturnedunless it was an abuse of discretion" (People v Moreno, 70 NY2d 403, 405-406 [1987];see People v Oehler, 52 AD3d955, 956-957 [2008], lv denied 11 NY3d 792 [2008]; People v Weekes, 46 AD3d 583,584-585 [2007], lv [*2]denied 10 NY3d 845 [2008];People v Crane, 294 AD2d 867 [2002], lv denied 98 NY2d 767 [2002]). Weperceive no abuse of discretion here, and we reject the contention of defendant that the court'srefusal to propose a new sentence lesser than the previously imposed minimum sentence evinceda bias against DLRA-2 and a determination to thwart the ameliorative effects of that legislation(see People v Strohman, 66 AD3d— [2009]). We therefore affirm the order andremit the matter to County Court to afford defendant an opportunity to withdraw his applicationfor resentencing before the proposed new sentence is imposed, as required by DLRA-2 (seeBoatman, 53 AD3d at 1054).
Finally, the appeal by defendant from a subsequent order denying his pro se motion for leaveto reargue his prior recusal motion is not before us on this appeal inasmuch as counsel was notassigned to represent defendant on his appeal from that order. We note in any event that noappeal lies from an order denying leave to reargue (see People v Auslander, 169 AD2d853, 854 [1991]). Present—Scudder, P.J., Smith, Carni, Pine and Gorski, JJ.