| People v Anonymous |
| 2011 NY Slip Op 04598 [85 AD3d 414] |
| June 2, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Anonymous, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), forrespondent.
Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or aboutJanuary 26, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimouslyaffirmed.
The court met its statutory obligation to "offer an opportunity for a hearing and bring theapplicant before it" (CPL 440.46 [3] [incorporating by reference provisions of 2004 Drug LawReform Act (L 2004, ch 738, § 23)]) when defendant was "brought before the court andgiven an opportunity to be heard" (seePeople v Soler, 45 AD3d 499 [2007], lv denied 9 NY3d 1009 [2007]). Wherethe critical facts are uncontested, that is all the statute requires (see People v Burgos, 44 AD3d387 [2007], lv denied 9 NY3d 990 [2007]).
The court properly exercised its discretion in determining that substantial justice dictateddenial of the application with regard to defendant's February 2005 conviction of criminal sale ofa controlled substance in the third degree. The court properly considered the totality ofcircumstances, including defendant's very extensive criminal record, the substantial quantities ofdrugs and cash involved in his drug selling activities, his unfavorable prison disciplinary record,and his multiple failures to appear in court (see e.g. People v Aguirre, 47 AD3d 489 [2008], lv denied 10 NY3d761 [2008]).
The court properly found defendant ineligible for resentencing as to his January 2005conviction of fifth-degree criminal sale of a controlled substance, a class D felony. CPL 440.46(2) authorizes resentencing on a class C, D, or E drug felony where the sentence for such anoffense was "imposed by the sentencing court at the same time or [was] included in the sameorder of commitment as such class B felony." Defendant's class D drug felony was the subject ofa separate indictment, a separate sentencing proceeding, and a separate commitment order fromhis class B felony. Contrary to defendant's argument, the indication, in the commitment order forthe B felony, that the sentence was to run concurrently with the previously imposed sentence forthe D felony did not bring the latter sentence within the ambit of the statute. The statutorylanguage plainly applies where a defendant is actually committed to custody on a lower [*2]level drug felony in the same order that commits him to custody ona B felony, not where an offense for which the defendant has previously been sentenced andcommitted is merely referenced in the later order. Concur—Andrias, J.P., Sweeny,Moskowitz, Renwick, Richter, JJ.