| People v Samuels |
| 2011 NY Slip Op 00444 [80 AD3d 1077] |
| January 27, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MarionSamuels, Appellant. |
—[*1] James R. Farrell, District Attorney (Bonnie M. Mitzner of counsel), Monticello, forrespondent.
Rose, J. Appeal from an order of the County Court of Sullivan County (LaBuda, J.), enteredJanuary 6, 2010, which denied defendant's motion for resentencing pursuant to CPL 440.46.
In 2000, defendant pleaded guilty to criminal possession of a controlled substance in the thirddegree and waived his right to appeal, upon the understanding that he would be permitted toreplead to a lesser charge if he cooperated with law enforcement officials. He did not cooperate,and County Court sentenced him, as a second felony offender, to an indeterminate term ofimprisonment. Defendant subsequently applied for resentencing pursuant to CPL 440.46, "whichextended the availability of reduced sentencing under the Drug Law Reform Act of 2004 toindividuals convicted of class B drug felonies" (People v Colon, 77 AD3d 849, 850 [2010] [citation omitted]).County Court denied defendant's application, and he appeals.
We reverse. While County Court was entitled to deny defendant's application if "substantialjustice dictate[d]" such a result (L 2004, ch 738, § 23; see CPL 440.46 [3]), itcould not base that denial upon misinformation or materially untrue assumptions (see Peoplev Naranjo, 89 NY2d 1047, 1049 [1997]; People v Braithwaite, 62 AD3d 1019, 1020-1021 [2009]). A courtis directed to consider a defendant's prison disciplinary history in weighing his or her applicationfor resentencing and, in this case, defendant had incurred six disciplinary citations during hiscurrent term of incarceration (see CPL 440.46 [3]). In its decision, however, County[*2]Court overstated the severity of several of them. While thePeople suggest that this overstatement was a typographical error that did not affect CountyCourt's decision, we are not at liberty to make that assumption. County Court's express mentionof "three Tier III hearings" in its decision "indicates that [it] probably considered them to bematerial" (United States v Stein, 544 F2d 96, 102 [2d Cir 1976]; see Townsend vBurke, 334 US 736, 740 [1948]; People v Barnes, 60 AD3d 861, 863-864 [2009]; People v Metellus, 46 AD3d 578,579 [2007], lv denied 10 NY3d 814 [2008]). As "material false assumptions as to anyfacts relevant to sentencing . . . renders the entire sentencing procedure invalid as aviolation of due process," we must remit this matter for County Court to redetermine defendant'smotion (United States v Malcolm, 432 F2d 809, 816 [2d Cir 1970]; see People vBraithwaite, 62 AD3d at 1020-1021).
As a final matter, County Court stated—and the sentence and commitment orderreflects—that defendant received a prison sentence of 12½ to 25 years (seePenal Law former § 70.00; § 70.06 [3], [4]; see also L 2004, ch 738, §28). In contrast, the sentencing transcript indicates that a sentence of 12½ to 20 years wasimposed, and defendant now claims that such was the actual sentence. County Court accordinglymust resolve that discrepancy upon remittal (see People v Gray, 11 AD3d 821, 822 [2004]; People vMohammed, 151 AD2d 1018, 1018-1019 [1989], lv denied 74 NY2d 815 [1989]).
Peters, J.P., Spain, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is reversed, onthe law, and matter remitted to the County Court of Sullivan County for further proceedings notinconsistent with this Court's decision.