| People v Bens |
| 2013 NY Slip Op 05752 [109 AD3d 664] |
| August 28, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v James Bens, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Suzanne H. Sullivan of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County(Camacho, J.), dated August 16, 2011, which denied, without a hearing, his motion to beresentenced pursuant to CPL 440.46 on his conviction of criminal sale of a controlledsubstance in the third degree, which sentence was previously imposed, upon a juryverdict, on March 7, 2001.
Ordered that the order is reversed, on the law, and the matter is remitted to theSupreme Court, Queens 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 sectiontwenty-three of chapter seven hundred thirty-eight of the laws of two thousand four shallgovern the proceedings on and determination of a motion brought pursuant to thissection." Section 23 of chapter 738 of the Laws of 2004 states, in pertinent part: "Thecourt shall offer an opportunity for a hearing and bring the applicant before it. The courtmay also conduct a hearing, if necessary, to determine . . . any controvertedissue of fact relevant to the issue of sentencing." The defendant's presence is not requiredwhere the court determines as a matter of law that a defendant is not entitled to reliefpursuant to CPL 440.46 (seePeople v Allen, 105 AD3d 969 [2013]). However, here, the People concededthat the defendant met the statutory requirements for relief pursuant to CPL 440.46, andthe question before the Supreme Court was whether substantial justice dictated that themotion should be denied. Thus, the defendant was entitled to appear before the court andto be given an opportunity to be heard (see id.).
Here, although the defendant was brought before the Supreme Court, a decisiondenying the defendant's motion had already been issued on the parties' writtensubmissions and the defendant was denied an opportunity to address the court. Indeed,the justice presiding on the appearance date was not the same justice who had receivedthe written submissions and authored the decision denying the defendant's motion. Thus,the defendant was effectively denied an opportunity to be heard (see People v Allen, 105 AD3d969 [2013]; People vIrvin, 96 AD3d 1453 [2012]; People v Murray, 89 AD3d 567, 569 [2011]; cf. People v Lopez, 103 AD3d460 [2013], lv denied 21 NY3d 945 [2013]; People v Morales, 46 AD3d1395 [2007]; People vSoler, 45 AD3d 499 [2007]; People v Robinson, 45 AD3d 442, 442-443 [2007]; People [*2]v Burgos, 44 AD3d 387 [2007]). Accordingly, theorder appealed from must be reversed, and the matter remitted to the Supreme Court,Queens County, for a new determination of the defendant's motion, to be made afteraffording him an opportunity to appear before the court, and, if necessary, conducting ahearing (see People v Allen,105 AD3d 969 [2013]). Mastro, J.P., Hall, Lott and Sgroi, JJ., concur.