| People v Anderson |
| 2011 NY Slip Op 05513 [85 AD3d 1043] |
| June 21, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JemelAnderson, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), forrespondent.
Appeal by the defendant from a resentence of the County Court, Rockland County (Bartlett,J.), imposed May 18, 2006, pursuant to the Drug Law Reform Act of 2005 (L 2005, ch 643),upon his conviction of criminal possession of a controlled substance in the second degree, uponhis plea of guilty, which sentence was originally imposed on November 4, 2004.
Ordered that the resentence is reversed, on the law, on the facts, and as a matter of discretionin the interest of justice, and the matter is remitted to the County Court, Rockland County, forfurther proceedings in accordance herewith.
In September 2004, the defendant pleaded guilty to criminal possession of a controlledsubstance in the second degree, a class A-II felony. In November 2004, the defendant wassentenced, as a second felony drug offender, to an indeterminate term of imprisonment of sixyears to life. The defendant subsequently moved to be resentenced pursuant to the Drug LawReform Act of 2005 (L 2005, ch 643) (hereinafter the 2005 DLRA). In response, the People, interalia, recommended that the defendant be resentenced to a determinate term of imprisonment ofeight years with five years of postrelease supervision. On May 18, 2006, the County Courtconducted a hearing and declared its intention to resentence the defendant to a determinate termof imprisonment of 10 years with five years of postrelease supervision. The County Courtadvised the defendant that he had the right to withdraw his application for resentencing beforethe proposed resentence was imposed. After consulting with his attorney, the defendant acceptedthe proposed resentence. The County Court then imposed the resentence.
"Upon determining that the defendant is eligible for resentencing under the 2005 DLRA, thecourt, unless it finds that 'substantial justice dictates that the application should be denied' (L2005, ch 643, § 1), must 'specify and inform' the defendant of the sentence it proposes toimpose under the new sentencing structure, and must 'enter an order to that effect' (id.).This initial DLRA order is appealable as of right, in accordance with the applicable provisions ofthe criminal procedure law (id.). The statute provides that ' [t]he court shall notify [thedefendant] that, unless he or she withdraws the application or appeals from [the initial DLRA]order, the court will enter an order vacating the sentence originally imposed' and imposing theproposed resentence (id.). If the defendant appeals from the initial DLRA [*2]order and it is affirmed, the matter is to be remitted to thesentencing court following the appeal, in order to afford the defendant another opportunity towithdraw the resentencing application 'before any resentence is imposed' (id.). If thedefendant does not withdraw the application or appeal from the initial DLRA order, the courtissues a final DLRA order imposing the resentence, which is also appealable as of right(id.)" (People v Love, 46AD3d 919, 920-921 [2007]; seePeople v Struss, 79 AD3d 773, 775 [2010]).
In this case, the County Court should have entered the initial DLRA order specifying thedeterminate sentence it would impose prior to imposing the resentence, and should have advisedthe defendant of his right to appeal from the initial DLRA order in accordance with the procedureset forth in the 2005 DLRA. Instead, after the defendant declined to withdraw his application, theCounty Court erred when it immediately proceeded to resentence the defendant.
We further find that the County Court's proposed resentence was excessive (see generallyPeople v Liddell, 189 AD2d 896 [1993]). Under the circumstances of this case, we find thatthe People's recommended resentence, namely, a determinate term of imprisonment of eightyears with five years of post release supervision, is appropriate.
In light of this determination, we remit the matter to the County Court, Rockland County, toenter the initial DLRA order specifying a proposed resentence, consisting of a determinate termof imprisonment of eight years with five years of postrelease supervision, and informing thedefendant that, unless he withdraws his motion or appeals from the initial DLRA order, theCounty Court will enter an order vacating the sentence originally imposed and imposing theproposed resentence (see People v Struss, 79 AD3d at 775-776). Skelos, J.P., Dickerson,Hall, Austin and Miller, JJ., concur.