| People v Benitez-Fernandez |
| 2012 NY Slip Op 05272 [96 AD3d 1665] |
| June 29, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v OnacimoBenitez-Fernandez, Appellant. (Appeal No. 1.) |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedJune 12, 2007. The judgment convicted defendant, upon his plea of guilty, of criminal sale of acontrolled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by reducing the sentence to an indeterminate term ofincarceration of 5 to 15 years.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisplea of guilty of criminal sale of a controlled substance in the third degree (Penal Law §220.39 [1]). In appeal No. 2, defendant appeals from an order denying his application forresentencing pursuant to CPL 440.46, the 2009 Drug Law Reform Act (DLRA-3).
Addressing first the order in appeal No. 2, we note that, "[w]hen a defendant moves forresentencing under [DLRA-3], the defendant is entitled to be brought before the court and givenan opportunity to be heard" (People vJenkins, 86 AD3d 522, 522 [2011]; see CPL 440.46 [3]; L 2004, ch 738, §23; People v Rampino, 55 AD3d348, 349 [2008]). Defendant contends that County Court failed to comply with the statutorymandate that "[t]he court shall . . . bring the applicant before it" (L 2004, ch 738,§ 23; see People vScarborough, 88 AD3d 585, 585-586 [2011]; Jenkins, 86 AD3d at 522-523; People v Moreno, 58 AD3d 643,644 [2009]). It is undisputed that defendant was never before the court on his resentencingmotion. The People respond that defendant waived his right to be brought before the court whendefense counsel submitted the motion for resentencing on the papers. "There is nothing in therecord, however, to support any inference that the defendant was ever advised of his statutoryright to be brought before the court, or that he knowingly, intentionally, and voluntarily chose torelinquish that right" (Moreno, 58 AD3d at 644). We nevertheless conclude thatdefendant failed to preserve his contention for our review (see People v Murray, 89 AD3d 567, 568 [2011]; see generally People v Williams, 90AD3d 1547, 1547-1548 [2011]). Defense counsel did not object to defendant's absence atoral argument on the motion for resentencing, nor did he object when the court decided themotion in the absence of defendant [*2]from the courtroom(see Murray, 89 AD3d at 568; cf. People v Garcia, 74 AD3d 477, 478 [2010]). Wedecline to exercise our power to review defendant's contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]).
Although defendant is eligible to apply for resentencing under DLRA-3 (see CPL440.46 [1]), we conclude that the court "did not abuse its discretion in determining thatsubstantial justice required denial of his application" (People v Gatewood, 87 AD3d 825, 826 [2011], lv denied17 NY3d 903 [2011]; see CPL 440.46 [3]; L 2004, ch 738, § 23; see e.g. People v Hickman, 85 AD3d1057, 1057-1058 [2011], lv denied 18 NY3d 859 [2011]; People v Wilson, 85 AD3d 1069,1069-1070 [2011], lv denied 17 NY3d 863 [2011]). We note in particular that defendantabsconded prior to sentencing on the conviction in appeal No. 1, and he remained at liberty forapproximately 14 years until he was involuntarily returned on a warrant.
With respect to the judgment in appeal No. 1, we agree with defendant that the sentence isunduly harsh and severe. Thus, as a matter of discretion in the interest of justice (see CPL470.15 [6] [b]), we modify the judgment by reducing the sentence to an indeterminate term ofincarceration of 5 to 15 years. Present—Smith, J.P., Fahey, Peradotto and Lindley, JJ.