People v Civitello

2011 NY Slip Op 07882 [89 AD3d 1244]

November 10, 2011

Appellate Division, Third Department

As corrected through Wednesday, January 4th, 2012

The People of the State of New York, Respondent, v Steven C. Civitello,Appellant.

—[*1]M. Joe Landry, Schenectady, for appellant.

James E. Conboy, District Attorney, Fonda (Sarah J. Leszczysnki of counsel), forrespondent.

Malone Jr., J. Appeal from a decision of the County Court of Montgomery County (Catena, J.),dated September 27, 2010, which denied defendant's motion for resentencing pursuant to CPL440.46.

In 2000, defendant pleaded guilty to one count of criminal sale of a controlled substance in the thirddegree in satisfaction of a two-count indictment. As a result, he was sentenced to a prison term of 8 to16 years. Thereafter, defendant applied for resentencing pursuant to the Drug Law Reform Act of 2009(L 2009, ch 56, as codified in CPL 440.46). County Court determined that defendant was eligible forrelief under that statute and ordered a hearing. Following that hearing, the court denied the applicationorally from the bench. This appeal by defendant followed.

Notably, the Drug Law Reform Act specifically provides that "a defendant [may] appeal as of right'from an order denying resentencing' " (People v Buckery, 84 AD3d 1588, 1589 [2011], quoting L 2004, ch738, § 23). The Drug Law Reform Act further provides that "[a]ny order issued by a court. . . must include written findings of fact and the reasons for such order" (L 2004, ch 738,§ 23). Inasmuch as there is no dispute herein that County Court failed to reduce its benchdecision to the required written order, this Court lacks jurisdiction to consider defendant's appeal andthe matter must be remitted to County Court for issuance of such order (see People v Buckery,84 AD3d at 1589; People v Peck, 46AD3d 1098, 1099 [2007]; see alsoPeople v Gutierrez, 51 AD3d 536 [2008]).[*2]

Spain, J.P., Rose, Stein and Egan Jr., JJ., concur. Ordered thatthe appeal is dismissed, and matter remitted to the County Court of Montgomery County for furtherproceedings not inconsistent with this Court's decision.