People v Cagle

2011 NY Slip Op 00575

Decided on February 1, 2011

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 1, 2011
Andrias, J.P., Sweeny, Moskowitz, DeGrasse, Abdus-Salaam, JJ.
4170 4232/00






Zoe Dolan, New York, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Yuval
Simchi-Levi of counsel), for respondent.

Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on or about September 16, 2008, which denied defendant's motion to be resentenced under the Drug Law Reform Act of 2005 (L 2005, ch 643), unanimously affirmed.

In denying defendant's application made under the 2005 DRLA, the court correctly found that he was ineligible for resentencing on his second-degree conspiracy conviction because, regardless of the drug-related nature of the underlying conduct, he was not convicted of an offense defined in article 220 of the Penal Law (see People v Caba, 49 AD3d 380 [2008], lv denied 10 NY3d 957 [2008]; People v Anonymous, 43 AD3d 806 [2007]). After the court denied the motion, the Legislature enacted the 2009 DRLA (L 2009, ch 56). Defendant did not move for resentencing under the 2009 DRLA, and the issue of his eligibility under that statute is not properly before us on this appeal. In any event, since the 2009 statute contains the same language as its 2004 and 2005 predecessors restricting its application to persons convicted of Penal Law article 220 offenses, defendant is plainly ineligible
for resentencing, and his arguments to the contrary are without merit.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 1, 2011

CLERK