Opinion
2014-05-22
The PEOPLE of the State of New York, Respondent, v. Robert CAIN, Appellant.
Theresa M. Suozzi, Saratoga Springs, for appellant. Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
Theresa M. Suozzi, Saratoga Springs, for appellant. Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, ROSE, EGAN JR. and LYNCH, JJ.
McCARTHY, J.
Appeal from an order of the County Court of Schenectady County (Hoye, J.), entered January 18, 2013, which denied defendant's motion for resentencing pursuant to CPL 440.46.
In 2004, defendant was convicted of criminal possession of a controlled substance in the third degree following his plea of guilty and sentenced to a prison term of 7 to 14 years. This conviction was upheld on appeal (24 A.D.3d 889, 806 N.Y.S.2d 260 [2005],lv. denied7 N.Y.3d 753, 819 N.Y.S.2d 878, 853 N.E.2d 249 [2006] ). In 2012, defendant sought resentencing pursuant to the Drug Law Reform Act of 2009 ( seeCPL 440.46). Although defendant was eligible for resentencing under the statute ( seeCPL 440.46[1] ), County Court denied defendant's application on the papers. Defendant appeals.
The governing legislation provides that “[t]he court shall offer an opportunity for a hearing and bring the applicant before it” (L. 2004 ch. 738, § 23; seeCPL 440.46[3] ). Where, as here, a defendant is eligible for relief pursuant to CPL 440.46, he or she must be brought before the court and offered an opportunity to be heard ( see People v. Allen, 105 A.D.3d 969, 969, 963 N.Y.S.2d 335 [2013];People v. Moreno, 58 A.D.3d 643, 644, 871 N.Y.S.2d 346 [2009] ). The record does not reflect that the proper procedure was followed in this case ( see People v. Benitez–Fernandez, 96 A.D.3d 1665, 1665, 946 N.Y.S.2d 820 [2012];compare People v. Robinson, 45 A.D.3d 442, 442, 844 N.Y.S.2d 872 [2007],lv. dismissed10 N.Y.3d 815, 857 N.Y.S.2d 49, 886 N.E.2d 814 [2008] ). Accordingly, the order appealed from must be reversed and the matter remitted to County Court for further proceedings ( see People v. Allen, 105 A.D.3d at 969, 963 N.Y.S.2d 335;People v. Moreno, 58 A.D.3d at 644, 871 N.Y.S.2d 346). In light of our conclusion on this procedural issue, we need not address defendant's remaining argument.
ORDERED that the order is reversed, on the law, and matter remitted to the County Court of Schenectady County for further proceedings not inconsistent with this Court's decision. LAHTINEN, J.P., ROSE, EGAN JR. and LYNCH, JJ., concur.