| People v Williams |
| 2011 NY Slip Op 01679 [82 AD3d 796] |
| March 1, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ronnie Williams, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (J. Doyle, J.),dated October 19, 2009, which, without a hearing, denied his motion for resentencing pursuant toCPL 440.46 on his conviction of criminal possession of a controlled substance in the thirddegree, which sentence was originally imposed by the same court (Gazzillo, J.), after a nonjurytrial, on March 25, 2003.
Ordered that the order is affirmed.
In order to be eligible for resentencing under CPL 440.46, a defendant must be in the custodyof the department of correctional services, must have been convicted of a class B felony drugoffense under article 220 of the Penal Law that was committed prior to January 13, 2005, andmust be serving an indeterminate sentence with a maximum of more than three years (seeCPL 440.46 [1]; People v Arroyo, 28 Misc 3d 1205[A], 2010 NY Slip Op 51151[U][2010]). However, the provisions of CPL 440.46 do "not apply to any person who is serving asentence on a conviction for or has a predicate felony conviction for an exclusion offense" (CPL440.46 [5]). An "exclusion offense" is defined as, inter alia, "a crime for which the person waspreviously convicted within the preceding ten years, excluding any time during which theoffender was incarcerated for any reason between the time of commission of the previous felonyand the time of commission of the present felony, which was: . . . a violent felonyoffense as defined in section 70.02 of the penal law" (CPL 440.46 [5] [a] [i]).
Here, at the time the defendant moved for resentencing, effectively on October 7, 2009, hewas ineligible for resentencing. The defendant was previously convicted of assault in the seconddegree, a class D violent felony offense (see Penal Law 70.02 [1] [c]), and sentence wasimposed on September 28, 2000, which was within 10 years of his motion for resentencing(see People v Hill, — AD3d —, 2011 NY Slip Op 01180 [4th Dept 2011];People v Sosa, 81 AD3d 464 [1st Dept 2011]; People v Green, 30 Misc 3d1204[A], 2010 NY Slip Op 52261[U] [2010]; People v Arroyo, 28 Misc 3d 1205[A],2010 NY Slip Op 51151[U], *1; People v Walltower, 27 Misc 3d 1205[A], 2010 NY SlipOp 50558[U] [2010]; People vDanton, 27 Misc 3d 638, 645 [2010], affd 81 AD3d — [1st Dept 2011];People v Brown, 26 Misc 3d 1204[A], 2010 NY Slip Op 50000[U] [2010]; People v Roman, 26 Misc 3d 784,786 [2009]; Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL440.46, 2011 Pocket Part, at 32-33), excluding any time during [*2]which the defendant was incarcerated between his commission ofthe second-degree assault and his conviction of criminal possession of a controlled substance inthe third degree. Accordingly, the County Court properly denied the defendant's motion forresentencing (see People v Danton, 27 Misc 3d at 650-651).
The defendant's remaining contention is without merit. Rivera, J.P., Balkin, Leventhal andHall, JJ., concur.