People v. Buckery

Full title: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DWAYNE BUCKERY…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: May 19, 2011

84 A.D.3d 1588 (N.Y. App. Div. 2011)

2011 N.Y. Slip Op. 4117

922 N.Y.S.2d 826

Opinion

No. 103137.

May 19, 2011.

Appeal from a decision of the County Court of Warren County (Hall, Jr., J.), dated December 22, 2009, which denied defendant's application to be resentenced under the Drug Law Reform Act of 2009.

Joseph Nalli, Fort Plain, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

Before: Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ.

Spain, J.P.

Following a jury trial in 2004, defendant was convicted of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree and sentenced as a persistent felony offender to a prison term of 20 years to life. Upon appeal, this Court affirmed ( People v Buckery, 20 AD3d 821, lv denied 5 NY3d 826). In 2009, defendant brought an application to be resentenced under the Drug Law Reform Act of 2009 (L 2009, ch 56, codified at CPL 440.46). At the conclusion of the hearing that followed, County Court denied defendant's application, and this appeal ensued.

"Appeals in criminal cases are strictly limited to those authorized by statute "( People v Bautista, 7 NY3d 838, 838-839; see CPL 450.10, 450.15, 450.20). Although the Drug Law Reform Act of 2004 (L 2004, ch 738, § 23), which is incorporated by reference in the Drug Law Reform Act of 2009 ( see CPL 440.46), permits a defendant to appeal as of right "from an order denying resentencing" (L 2004, ch 738, § 23 [emphasis added]), there is nothing in the record to suggest that County Court's bench decision was reduced to a written order as required.^_ Absent an appealable paper, we are without jurisdiction to entertain defendant's appeal ( see People v Fricchione, 43 AD3d 410, 411). Accordingly, the appeal is dismissed, and this matter is remitted to County Court for the issuance of the required order ( see People v Peck, 46 AD3d 1098, 1099).

_ Laws of 2004 (ch 738, § 23) provide that the sentencing court "shall issue an order denying the application" if substantial justice so dictates.

Ordered that the appeal is dismissed and matter remitted to the County Court of Warren County for further proceedings not inconsistent with this Court's decision.