| People v Allen |
| 2013 NY Slip Op 02586 [105 AD3d 969] |
| April 17, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kenneth Allen, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County(Hudson, J.), dated November 18, 2011, which denied, without a hearing, his motion tobe resentenced pursuant to CPL 440.46 on his conviction of criminal sale of a controlledsubstance in the third degree, which sentence was originally imposed, upon a juryverdict, on February 25, 1999.
Ordered that the order is reversed, on the law, and the matter is remitted to theCounty Court, Suffolk County, for a new determination of the defendant's motion, inaccordance herewith.
CPL 440.46 (3), provides, in pertinent part, that "[t]he provisions of section twentythree of chapter seven hundred thirty eight of the laws of two thousand four shall governthe proceedings on and determination of a motion brought pursuant to this section."Section 23 of chapter 738 of the Laws of 2004 states, in pertinent part: "The court shalloffer an opportunity for a hearing and bring the applicant before it. The court may alsoconduct a hearing, if necessary, to determine . . . any controverted issue offact relevant to the issue of sentencing." The defendant's presence is not required wherethe court determines as a matter of law that a defendant is not entitled to relief pursuantto CPL 440.46 (see People vVaughan, 62 AD3d 122, 129 [2009]). However, here, the People conceded thatthe defendant met the statutory requirements for relief pursuant to CPL 440.46, and thequestion before the court was whether substantial justice dictated that the motion shouldbe denied. Thus, the defendant is entitled to appear before the court and to be given anopportunity to be heard (seePeople v Martin, 94 AD3d 637 [2012]; People v Scarborough, 88 AD3d 585, 585-586 [2011]; People v Jenkins, 86 AD3d522, 523 [2011]; People vMoreno, 58 AD3d 643, 644 [2009]; 7-75 New York Criminal Practice §75.13-b). Since the defendant was not brought before the court, and there is no indicationthat he knowingly, intentionally, and voluntarily relinquished that right (cf. People vBenitez-Fernandez, 96 AD3d 1665, 1665-1666 [2012]), the order appealed frommust be reversed, and the matter remitted to the County Court, Suffolk County, for a newdetermination of the defendant's motion, to be made after affording him an opportunity toappear before the court, and, if necessary, conducting a hearing (see People vMoreno, 58 AD3d at 644). Rivera, J.P., Dickerson, Leventhal and Hinds-Radix, JJ.,concur.