| People v Golb |
| 2015 NY Slip Op 01731 [126 AD3d 401] |
| Decided on March 3, 2015 |
| Appellate Division, First Department |
| This opinion is uncorrected and subject torevision before publication in the Official Reports. |
Decided on March 3, 2015
Gonzalez, P.J., Mazzarelli, Manzanet-Daniels, Gische, Clark, JJ.
13595 2721/09
v
Raphael Golb, Defendant-Appellant.
Ronald L. Kuby, New York, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Judgment of resentence, Supreme Court, New York County (Laura A. Ward, J.),rendered July 14, 2014, resentencing defendant to an aggregate term of two months,concurrent with three years' probation, unanimously affirmed.
Defendant argues on this appeal that his CPL 330.30 motion should have beengranted, since he was tried under an unconstitutionally broad reading of statutes thatwere subsequently narrowed by the Court of Appeals (23 NY3d 455 [2014], cert denied_ US _, 83 USLW 3559 [2015]). Further, defendant claims that the trial court erred infinding his CPL 330.30 motion untimely.
We find that defendant's appeal from his judgment of resentence following remandfrom the Court of Appeals does not bring up for review defendant's present challenges tohis original conviction (see e.g.People v Ramos, 105 AD3d 684 [1st Dept 2013], lv denied 21 NY3d1045 [2013]). Under CPL 450.30(3), an appeal "from a resentence following an ordervacating the original sentence," is considered an "appeal from a sentence." An appealfrom a sentence may be based only "upon the ground that such sentence either was (a)invalid as a matter of law, or (b) harsh or excessive" (CPL 450.30[1]). Thus, whiledefendant's direct appeal from his judgment of resentence is properly before this Court, itis improper to consider or review defendant's present challenges regarding his CPL330.30 motion. Moreover, even if defendant's claims were reviewable on this appeal, hisCPL 330.30 motion was properly denied as untimely since it was not made prior to theoriginal sentence (see CPL 330.30; People v Jenkins, 78 AD3d 1212 [3d Dept 2010]).
Additionally, even upon considering the merits of defendant's argument that he wastried under an unconstitutionally broad reading of statutes that were subsequentlynarrowed, we find that this issue has already been addressed by the Court of Appeals (23NY3d 455). Defendant raised this exact argument on his application to the Court ofAppeals for reargument which was also denied (24 NY3d 932 [2014]). Thus, on thisappeal, defendant is requesting relief already denied by the Court of Appeals.
Defendant argues that, in light of the analysis set forth in the opinion of the Court ofAppeals, he should receive a new trial on the counts not dismissed by that Court, withdifferent jury instructions reflecting such analysis. Nevertheless, this new argumentshould have been [*2]addressed to the Court of Appealsitself (see People v Suarez,110 AD3d 420 [1st Dept 2013], lv denied 22 NY3d 1044 [2013]).
Finally, defendant asserts that his sentence of two months incarceration followed bythree years of probation is unduly harsh. However, given defendant's convictions on the19 misdemeanor counts of criminal impersonation and forgery, we do not find thesentence imposed at resentencing harsh or excessive.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRSTDEPARTMENT.
ENTERED: MARCH 3, 2015
CLERK