| People v Barnett |
| 2012 NY Slip Op 06995 [99 AD3d 1030] |
| October 18, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DerekBarnett, Also Known as Derek Didly, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Peters, P.J. Appeal from a decision of the County Court of Warren County (Hall, Jr., J.),dated December 22, 2009, which denied defendant's motion for resentencing pursuant to CPL440.46.
In 1999, defendant was convicted of two counts of criminal possession of a controlledsubstance in the third degree and conspiracy in the fourth degree and was sentenced to 12½to 25 years in prison on each of the drug charges and 2 to 4 years on the conspiracy charge, all torun concurrently. A decade later, defendant moved to be resentenced on the drug chargespursuant to the Drug Law Reform Act of 2009 (L 2009, ch 56, as codified in CPL 440.46). Aftera hearing, County Court issued an oral decision from the bench denying the application.Defendant appeals.
The Drug Law Reform Act provides that an appeal may be taken as of right "from anorder denying resentencing" (L 2004, ch 738, § 23 [emphasis added]). Notably, anyorder issued "must include written findings of fact and the reasons for such order" (L 2004, ch738, § 23). As [*2]County Court's bench decision was notreduced to the required written order, this Court lacks jurisdiction to entertain defendant's appealand the matter must be remitted to County Court for issuance of such an order (see People v Walker-Llanos, 92 AD3d974, 974 [2012]; People vCivitello, 89 AD3d 1244, 1244 [2011]; People v Buckery, 84 AD3d 1588, 1589 [2011]; People v Peck, 46 AD3d 1098,1099 [2007]).
The Court of Appeals' recent decision in People v Elmer (19 NY3d 501 [2012]) does not require a contraryresult. There, the Court, analyzing two particular provisions of the CPL, held that "an appeal doeslie from an oral order of a criminal court that finally disposes of [a] pretrial matter"(id. at 505 [emphasis added]). For this reason alone, Elmer has no applicationhere. More importantly, unlike the two provisions of the CPL at issue in Elmer which,"significantly, permit appeals from an 'order' without further restriction" (id. at507 [emphasis added]), the Drug Law Reform Act specifically provides that any order issuedthereunder must include "written findings of fact and the reasons for such order" (L 2004,ch 738, § 23 [emphasis added]).
Rose, Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the appeal is dismissed, andmatter remitted to the County Court of Warren County for further proceedings not inconsistentwith this Court's decision.