| People v Struss |
| 2010 NY Slip Op 09156 [79 AD3d 773] |
| December 7, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AnthonyStruss, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Dutchess County (Dolan, J.), datedOctober 22, 2009, which, after a hearing, denied his motion for resentencing pursuant to the Drug LawReform Act of 2005 (L 2005, ch 643), on his conviction of criminal possession of a controlledsubstance in the second degree, which sentence was originally imposed, upon a jury verdict, on January17, 2003.
Ordered that the order is reversed, on the law, and the matter is remitted to the County Court,Dutchess County, for further proceedings on the defendant's motion consistent herewith.
On January 17, 2003, the defendant was convicted of the class A-II felony of criminal possessionof a controlled substance in the second degree (Penal Law § 220.18 [1]) and the class B felonyof criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]).For each count, he received an indeterminate sentence, the two sentences to run concurrently. Thedefendant subsequently moved for resentencing pursuant to the Drug Law Reform Act of 2005 (L2005, ch 643, § 1 [hereinafter the 2005 DLRA]), which retroactively extended the revisedsentencing provisions of the Drug Law Reform Act of 2004 (L 2004, ch 738) to certain qualifiedinmates who had previously been convicted of class A-II felonies.
On June 6, 2006, during a hearing on the resentencing motion, the County Court, having reviewedthe parties' submissions and determined that the defendant met the threshold eligibility requirementsunder the 2005 DLRA, informed the defendant of the determinate term of imprisonment it wouldimpose, upon resentencing, for the class A-II felony. The defendant stated, however, that he believedhis sentence for the class B felony was "illegal," and requested a two-week adjournment in order tofurther consult with his attorney and, if warranted, to move for resentencing with respect to thatconviction. The County Court denied the request and asked the defendant how he wished to proceed.The defendant stated that he was "not agreeing to nothing" unless the County Court granted theadjournment, whereupon the County Court denied his motion for resentencing on the class A-II felony.
Contrary to the defendant's contention on appeal, the County Court did not improvidently exerciseits discretion in denying his request for an adjournment. "The determination whether to grant an [*2]adjournment is committed to the sound discretion of the . . .court," and "absent a showing of prejudice, the court's denial of a request for an adjournment will notbe disturbed" (People v McRae, 62AD3d 723, 724 [2009]; see People v Spears, 64 NY2d 698, 699-700 [1984]). Here,contrary to the defendant's contention, he was afforded a meaningful opportunity to consult with hisattorney during the proceeding and, thus, the denial of his request for an adjournment did not impingeupon a fundamental right (cf. People v Spears, 64 NY2d at 700). The County Court properlyexplained to the defendant during the proceeding that his sentence, as a second felony offender, to anindeterminate term of 8 to 16 years upon his conviction of the class B felony, fell within the lawfulsentencing range (see Penal Law § 70.06 [3] [b]; [4] [b]). Moreover, at the time of thedefendant's motion, neither the 2005 DLRA nor any other statute authorized the County Court toresentence the defendant for his conviction of the class B felony (see People v Subgidio, 56 AD3d 496, 497 [2008]). Therefore, theCounty Court did not improvidently exercise its discretion in denying the defendant's request for anadjournment to make a motion which was then without merit (see People v Guagenti, 264AD2d 427 [1999]; People v Watson, 248 AD2d 737 [1998]).
Upon properly denying the requested adjournment, however, the County Court was withoutauthority to deny the defendant's motion for resentencing on the class A-II felony on this ground.Where, as here, the defendant is eligible for resentencing, a motion for resentencing "should be grantedunless substantial justice dictates that [it] should be denied" (People v Braithwaite, 62 AD3d 1019, 1021 [2009] [internal quotationmarks omitted]; see People v Beasley,47 AD3d 639, 641 [2008]). The County Court, in pronouncing the determinate term it wouldimpose upon resentencing, in effect, made a determination that substantial justice did not dictate denialof the motion. Thereafter, the County Court was required to follow the procedure set forth in the 2005DLRA: "Upon determining that the defendant is eligible for resentencing under the 2005 DLRA, thecourt, unless it finds that 'substantial justice dictates that the application should be denied' (L 2005, ch643, § 1), must 'specify and inform' the defendant of the sentence it proposes to impose underthe new sentencing structure, and must 'enter an order to that effect' (id.). This initial DLRAorder is appealable as of right, in accordance with the applicable provisions of the criminal procedurelaw (id.). The statute provides that '[t]he court shall notify [the defendant] that, unless he or shewithdraws the application or appeals from [the initial DLRA] order, the court will enter an ordervacating the sentence originally imposed' and imposing the proposed resentence (id.). If thedefendant appeals from the initial DLRA order, the matter is to be remitted to the sentencing courtfollowing the appeal, in order to afford the defendant another opportunity to withdraw the resentencingapplication 'before any resentence is imposed' (id.). If the defendant does not withdraw theapplication or appeal from the initial DLRA order, the court issues a final DLRA order imposing theresentence, which is also appealable as of right (id.)" (People v Love, 46 AD3d 919, 920-921 [2007]).
In this case, the County Court should have entered the initial DLRA order specifying thedeterminate sentence it would impose, and should have advised the defendant in accordance with theprocedure set forth in the 2005 DLRA. Instead, the County Court improperly denied the motion.Accordingly, we remit the matter to the County Court, Dutchess County, to enter the initial DLRAorder with the proposed resentence on the class A-II felony, and to inform the defendant that, unless hewithdraws his motion or appeals from the initial DLRA order, the County Court will enter an ordervacating the sentence originally imposed and imposing the proposed resentence (id.). Prudenti,P.J., Angiolillo, Belen and Sgroi, JJ., concur.