| People v Norris |
| 2011 NY Slip Op 09352 [90 AD3d 955] |
| December 20, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v ElbertNorris, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Maria Park, andCaroline R. Donhauser of counsel; Gamaliel Marrero on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Marrus, J.),dated March 1, 2011, which, after a hearing, inter alia, specified and informed him that, in theevent of a resentence pursuant to CPL 440.46, the court would impose determinate sentences of 6years' imprisonment and a period of postrelease supervision of 3 years in lieu of eachindeterminate sentence of 5 to 10 years' imprisonment originally imposed on December 15, 2003.
Ordered that the order is affirmed and the matter is remitted to the Supreme Court, KingsCounty, for further proceedings in accordance herewith.
The Supreme Court properly determined that it lacked the authority under CPL 440.46 toorder, upon resentence, that determinate terms run concurrently when the original indeterminateterms were ordered to run consecutively (see CPL 430.10; People v Acevedo, 14 NY3d 828,831 [2010]; People v Vaughan, 62AD3d 122, 125-126 [2009]; seealso People v Highsmith, 79 AD3d 1741, 1742 [2010]).
Pursuant to the Drug Law Reform Act of 2009 (see CPL 440.46), we remit thismatter to the Supreme Court, Kings County, to afford the defendant an opportunity to withdrawhis application for resentencing before any resentence is imposed (id.; see L2004, ch 738, § 23). Mastro, A.P.J., Hall, Sgroi and Cohen, JJ., concur.