| People v Highsmith |
| 2010 NY Slip Op 09722 [79 AD3d 1741] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RoyHighsmith, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from an order of the Erie County Court (Thomas P. Franczyk, J.), entered December15, 2008 pursuant to the 2004 and 2005 Drug Law Reform Acts. The order granted defendant'sapplication for resentencing upon defendant's conviction of criminal possession of a controlledsubstance in the first degree and criminal sale of a controlled substance in the second degree (twocounts) and specified the sentence that would be imposed.
It is hereby ordered that the order so appealed from is unanimously affirmed and the matter isremitted to Erie County Court for further proceedings in accordance with the followingmemorandum: Defendant appeals from an order granting his application for resentencing uponhis conviction of criminal possession of a controlled substance in the first degree (Penal Law§ 220.21 [former (1)]), pursuant to the 2004 Drug Law Reform Act (DLRA-1) (L 2004, ch738, § 23), and for resentencing upon his conviction of two counts of criminal sale of acontrolled substance in the second degree (§ 220.41 [1]), pursuant to the 2005 Drug LawReform Act (DLRA-2) (L 2005, ch 643, § 1). The order also specified that, for each of thethree counts, County Court would impose a determinate sentence of eight years plus a period ofpostrelease supervision of five years. Defendant failed to preserve for our review his contentionthat County Court failed to "offer an opportunity for a hearing and bring [him] before it" (L 2005,ch 643, § 1; L 2004, ch 738, § 23; see CPL 470.05 [2]). Contrary todefendant's contention, "[t]here was no mode of proceedings error in this matter and, thus, anyalleged error required preservation" (People v Rosen, 96 NY2d 329, 335 [2001], certdenied 534 US 899 [2001]). In any event, we conclude that "the critical facts here wereuncontested, making it unnecessary for the court to [conduct] an evidentiary hearing" (People v Burgos, 44 AD3d 387,387 [2007], lv dismissed 9 NY3d 990 [2007]).
Defendant contends that the court had authority to reduce the conviction of criminalpossession of a controlled substance in the first degree, an A-I drug felony, to criminalpossession of a controlled substance in the second degree, an A-II drug felony, on the ground thatdefendant was convicted of possessing an amount of cocaine that does not meet the weightrequirement for the A-I drug felony set forth in the statute as amended by DLRA-1. We rejectthat contention inasmuch as DLRA-1 "does not [*2]permit thecourt to disturb the underlying class A-I felony conviction" (People v Watts, 58 AD3d 648, 649 [2009], lv dismissed 12NY3d 763 [2009]; see People vQuinones, 22 AD3d 218, 219 [2005], lv denied 6 NY3d 817 [2006]; see generally People v Utsey, 7 NY3d398, 404 [2006]). Further, the court properly concluded that, in resentencing defendantpursuant to DLRA-1 and DLRA-2, it lacked authority " 'to determine whether the sentence[s are]to be served concurrently or consecutively with respect to other sentences' " (People v Acevedo, 14 NY3d 828,831 [2010]). Finally, we reject defendant's contention that the proposed new sentence is harshand excessive.
We therefore affirm the order and remit the matter to County Court to afford defendant anopportunity to withdraw his application for resentencing before the proposed new sentence isimposed, as required by DLRA-1 and DLRA-2. Present—Martoche, J.P., Smith, Fahey,Peradotto and Green, JJ.