| People v Williams |
| 2011 NY Slip Op 09441 [90 AD3d 1547] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MickeyWilliams, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from an order of the Supreme Court, Erie County (Richard C. Kloch, Sr., A.J.),entered March 17, 2010 pursuant to the 2009 Drug Law Reform Act. The order denieddefendant's application to be resentenced upon defendant's 1995 conviction of criminal sale of acontrolled substance in the third degree (three counts) and criminal possession of a controlledsubstance in the third degree (three counts).
It is hereby ordered that the order so appealed from is unanimously reversed as a matter ofdiscretion in the interest of justice and on the law and the matter is remitted to Supreme Court,Erie County, for further proceedings in accordance with the following memorandum: Defendantappeals from an order denying his application for resentencing pursuant to CPL 440.46, the 2009Drug Law Reform Act. We conclude that the record is insufficient to support the determinationof Supreme Court that defendant was ineligible for resentencing on the ground that his 1976conviction of robbery in the second degree (Penal Law § 160.10) constituted an "exclusionoffense" as defined in CPL 440.46 (5) (a) (i). We agree with defendant that the record fails toestablish "the time of commission of the previous felony" and whether the court properlycalculated the look-back period of 10 years as tolled by defendant's periods of incarceration (CPL440.46 [5] [a]). Although defendant failed to preserve those contentions for our review(see CPL 470.05 [2]), we nevertheless exercise our power to review them as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Further, we are unable toconclude on the record before us whether defendant's prior conviction of robbery in the seconddegree was a second violent felony offense rendering him ineligible for resentencing pursuant toCPL 440.46 (5) (b). We therefore reverse the order, and we remit the matter to Supreme Court todetermine the date on which defendant committed the prior offense of robbery in the seconddegree and to calculate the periods for which defendant was incarcerated after that offense inorder to determine if that offense constituted an exclusion offense pursuant to CPL 440.46 (5) (a)(i). Upon remittal, the court must also determine whether that offense was a second violentfelony offense that constitutes an exclusion offense pursuant to CPL 440.46 (5) (b).Present—Fahey, J.P., Peradotto, Lindley, Green and Gorski, JJ.