People v Worth

2011 NY Slip Op 03427 [83 AD3d 1547]

April 29, 2011

Appellate Division, Fourth Department

As corrected through Wednesday, June 8, 2011

The People of the State of New York, Respondent, v DouglasWorth, Appellant. (Appeal No. 1.)

—[*1]Beth A. Ratchford, Rochester, for defendant-appellant.

Douglas Worth, defendant-appellant pro se.

Michael C. Green, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.

Appeal from an order of the Supreme Court, Monroe County (Joseph D. Valentino, J.),entered January 9, 2006 pursuant to the 2005 Drug Law Reform Act. The order denieddefendant's application to be resentenced upon defendant's 1994 conviction of criminal sale of acontrolled substance in the second degree and criminal possession of a controlled substance inthe third degree.

It is hereby ordered that the order so appealed from is unanimously affirmed.

Memorandum: In appeal No. 1, defendant appeals from an order denying his application forresentencing upon his 1994 conviction of criminal sale of a controlled substance in the seconddegree and criminal possession of a controlled substance in the third degree, pursuant to the 2005Drug Law Reform Act (DLRA-2) (L 2005, ch 643, § 1). We reject defendant's contentionthat Supreme Court erred in failing to conduct a hearing on his application. Where a personqualifies to apply for DLRA-2 resentencing, "[t]he court shall offer an opportunity for a hearingand bring the applicant before it" (L 2005, ch 643, § 1; see generally People v Williams, 45 AD3d 1377 [2007]). Here,however, defendant was serving a sentence for violent felony offenses, and thus he wasprecluded from applying for resentencing (see L 2005, ch 643, § 1; Correction Law§ 803 [1] [d]).

In appeal No. 2, defendant appeals from an order denying his motion pursuant to CPL 440.20to set aside the sentence of imprisonment of 21/3 to 7 years imposed upon his 1990conviction of attempted burglary in the second degree. We agree with defendant that theindeterminate sentence was illegal because the court failed to sentence him as a second felonyoffender (see People v Motley [appeal No. 3], 56 AD3d 1158, 1159 [2008]). Becausedefendant is serving two consecutive indeterminate sentences for his 1990 and 1994 convictionswith an aggregate maximum term of life in prison, we agree with him that the legality of the1990 sentence cannot be considered moot (see generally People v Curley, 285 AD2d 274,276 [2001], lv denied 97 NY2d 607 [2002]). We therefore reverse the order, grant themotion and set aside the sentence, and we remit the matter to Supreme Court for the filing of a[*2]predicate felony statement and resentencing in accordancewith the law (see CPL 440.20 [4]; People v Ruddy, 51 AD3d 1134, 1135 [2008], lv denied 12NY3d 787 [2009]; People vMcCants, 15 AD3d 892 [2005]). We note, however, that there is no evidence in therecord before us that defendant was promised a specific term of imprisonment of21/3 to 7 years as a part of the plea agreement. Thus, we reject defendant'scontention that his plea must be vacated based on the court's inability to comply with the pleaagreement. Rather, if any specific sentence was promised as part of the plea agreement, thesentencing court has the discretion to impose that sentence or to afford defendant an opportunityto withdraw his plea (see generally People v Selikoff, 35 NY2d 227, 239-241 [1974],cert denied 419 US 1122 [1975]).

We have reviewed the contentions of defendant in his pro se supplemental brief and concludethat, to the extent that they have not been addressed by our decision herein, they are outside thescope of the instant appeals. Present—Centra, J.P., Fahey, Lindley, Gorski and Martoche,JJ.