Opinion
2013-05-23
The PEOPLE of the State of New York, Respondent, v. William C. ALLEN, Appellant.
Jay L. Wilber, Public Defender, Binghamton (Jonathan Rothermel of counsel), for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
Jay L. Wilber, Public Defender, Binghamton (Jonathan Rothermel of counsel), for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
Before: ROSE, J.P., STEIN, SPAIN and McCARTHY, JJ.
STEIN, J.
Appeal from a decision of the County Court of Broome County (Smith, J.), dated March 22, 2012, which denied defendant's motion for resentencing pursuant to CPL 440.46.
In 1999, defendant was convicted upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree and sentenced to a prison term of 4 1/2 to 9 years. In 2010, defendant moved for resentencing under the Drug Law Reform Act of 2009 (L 2009, ch 56, as codified in CPL 440.46). We previously reversed an order of County Court finding that defendant was ineligible for resentencing based upon his commission of a violent felony offense while on parole from the drug offense at issue (92 A.D.3d 980, 937 N.Y.S.2d 636 [2012] ). At the conclusion of the hearing conducted upon remittal, County Court issued an oral decision from the bench denying the application. Defendant now appeals.
The record contains no written order denying defendant's application for resentencing and setting forth County Court's “findings of fact and the reasons for such order” as is required under the Drug Law Reform Act (L. 2004, ch. 738, § 23). Absent the necessary written order, we are without jurisdiction to consider defendant's appeal ( see People v. Barnett, 99 A.D.3d 1030, 1031, 951 N.Y.S.2d 919 [2012];People v. Joseph, 89 A.D.3d 1324, 1325, 932 N.Y.S.2d 918 [2011];People v. Buckery, 84 A.D.3d 1588, 1589, 922 N.Y.S.2d 826 [2011] ). Accordingly, the appeal is dismissed, and the matter is remitted to County Court for issuance of an order ( see People v. Barnett, 99 A.D.3d at 1031, 951 N.Y.S.2d 919;People v. Peck, 46 A.D.3d 1098, 1099, 847 N.Y.S.2d 734 [2007] ).
ORDERED that the appeal is dismissed, and matter remitted to the County Court of Broome County for further proceedings not inconsistent with this Court's decision.