People v Garcia

2016 NY Slip Op 08881 [145 AD3d 1032]

December 28, 2016

Appellate Division, Second Department

As corrected through Wednesday, February 1, 2017

[*1]

The People of the State of New York,Respondent, v Jose Garcia, Appellant.

Lisa H. Blitman, New York, NY, for appellant.

David M. Hoovler, District Attorney, Middletown, NY (Andrew R. Kass of counsel),for respondent.

Appeal by the defendant from an order of the County Court, Orange County(Freehill, J.), dated September 30, 2013, which, after a hearing, upon remittitur from thisCourt, specified and informed him that the court would impose determinate terms ofimprisonment of 171/2 years to run consecutively to each other, followedby a five-year period of postrelease supervision, in the event of a resentence, in effect,pursuant to the Drug Law Reform Act of 2004 (L 2004, ch 738), on his conviction ofcriminal possession of a controlled substance in the first degree under indictment No.04-536, upon a jury verdict, and on his conviction of criminal sale of a controlledsubstance in the first degree under indictment No. 04-594, upon a jury verdict, whichsentences were originally imposed April 14, 2005.

Ordered that the order is reversed, on the law, and the matter is remitted to theCounty Court, Orange County, for further proceedings in accordance herewith.

The defendant was charged under two separate indictments with various drugoffenses relating to a joint investigation by state and federal authorities into gang-relatednarcotics trafficking in the City of Newburgh. Under Orange County indictment No.04-536, the defendant was convicted, after a jury trial, of criminal possession of acontrolled substance in the first degree (a class A-I felony), and sentenced to anindeterminate term of 171/2 years to life imprisonment. This Courtaffirmed the judgment of conviction (see People v Garcia, 57 AD3d 918 [2008]). Under OrangeCounty indictment No. 04-594, the defendant was convicted of criminal sale of acontrolled substance in the first degree (a class A-I felony), criminal sale of a controlledsubstance in the second degree (a class A-II felony), criminal possession of a controlledsubstance in the second degree (a class A-II felony), and two counts of criminal sale of acontrolled substance in the third degree (a class B felony). The defendant was sentencedto indeterminate terms of 171/2 years to life imprisonment on the count ofcriminal sale of a controlled substance in the first degree, eight years to life imprisonmenton the count of criminal sale of a controlled substance in the second degree, eight yearsto life imprisonment on the count of criminal possession of a controlled substance in thesecond degree, and 5 to 15 years imprisonment on each count of criminal sale of acontrolled substance in the third degree. The sentence on the count of criminal sale of acontrolled substance in the first degree was to run concurrently with the sentences on theremaining counts in indictment No. 04-594, and consecutively to the sentence underindictment No. 04-536. This Court affirmed the judgment of conviction (see People v Garcia, 66 AD3d699 [2009]).

[*2] In March 2010, thedefendant moved for resentencing pursuant to the Drug Law Reform Act of 2004 (L2004, ch 738), the Drug Law Reform Act of 2005 (L 2005, ch 643), and the Drug LawReform Act of 2009 (CPL 440.46) (hereinafter collectively the DLRA). The CountyCourt resentenced the defendant, pronouncing resentences for each count of bothindictments, but without complying with the procedures specified in the DLRA,requiring the entry of initial orders specifying the proposed resentences. Consequently,this Court reversed the resentences and remitted the matter to the County Court for theentry of the initial DLRA orders specifying proposed resentences and informing thedefendant that, unless he withdrew his motion or appealed from the initial DLRA orders,the County Court would enter orders vacating the sentences originally imposed andimpose the proposed resentences (see People v Garcia, 107 AD3d 738 [2013]).

By order dated September 30, 2013, the County Court specified and informed thedefendant that "it is the Court's sentencing position that the defendant, upon resentence,should receive a determinate term of 171/2 years plus 5 years post releasesupervision on each indictment to run consecutively." While this pronouncementapparently refers to the class A-I felonies in each indictment, the court failed to specifyits sentencing position with respect to the convictions of the class A-II felonies and theclass B felonies under indictment No. 04-594.

Accordingly, the order must be reversed, and we again remit the matter to the CountyCourt, Orange County, for the entry of initial DLRA orders for each indictment,specifying the proposed resentences for each count of each indictment and informing thedefendant that, unless he withdraws his motion or appeals from the initial DLRA orders,the County Court will enter orders vacating the sentences originally imposed andimposing the proposed resentences (see People v Struss, 79 AD3d 773 [2010]).

The defendant's remaining contention need not be reached in light of ourdetermination. Balkin, J.P., Dickerson, LaSalle and Connolly, JJ., concur.