| People v Coleman |
| 2011 NY Slip Op 02975 [83 AD3d 1223] |
| April 14, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Earl Coleman,Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Malone Jr., J. Appeal from an order of the County Court of Sullivan County (LaBuda, J.),entered January 26, 2010, which denied defendant's motion for resentencing pursuant to CPL440.46.
Defendant was convicted of two counts of criminal sale of a controlled substance in the thirddegree following a jury trial and, in 2001, was sentenced as a persistent felony offender to anaggregate prison term of 15 years to life. County Court thereafter denied defendant's motion forresentencing pursuant to CPL 440.46, finding him to be ineligible under the terms of that statute.Defendant now appeals.
We reverse. CPL 440.46 (4) affords indigent defendants the right to assigned counsel for "thepreparation of and proceedings on motions" made under that section. In his initial motion papers,defendant alleged that he was indigent and requested that counsel be assigned, but County Courttook no action to investigate that request. Contrary to the People's argument, the record is devoidof evidence that defendant wished to represent himself or that he was adequately warned of theperils of doing so; indeed, he reiterated his request that counsel be assigned after the Peopleargued that he was ineligible for resentencing (see People v James, 13 AD3d 649, 650 [2004], lv denied 5NY3d 764 [2005]). At a minimum, defendant's requests triggered County Court's "obligation toinquire further into [his] eligibility for and desire for the appointment of counsel," and we remitthis matter so that it may do so (People v McKiernan, 84 NY2d 915, 916[*2][1994]; see People v Ross, 67 NY2d 321, 325-326 [1986];People v Lasch, 309 AD2d 1086, 1087-1088 [2003]). In light of the foregoing,defendant's remaining arguments are academic.
Mercure, J.P., Rose, Stein and Egan Jr., JJ., concur. Ordered that the order is reversed, on thelaw, and matter remitted to the County Court of Sullivan County for further proceedings notinconsistent with this Court's decision.