Opinion
No. 1452.
June 28, 2007.
Order, Supreme Court, New York County (Marcy L. Kahn, J.), entered on or about March 23, 2006, which specified and informed defendant that the court would resentence him to a term of 18 years for his conviction of criminal possession of a controlled substance in the first degree, unanimously affirmed, and the matter remitted to Supreme Court, New York County, for further proceedings upon defendant's application for resentencing.
Robert S. Dean, Center for Appellate Litigation, New York (Gayle Pollack of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.
Before: Lippman, P.J., Mazzarelli, Marlow, Buckley and Malone, JJ.
To the extent that defendant appeals, on the ground of excessiveness, from the court's order specifying its intended resentence, we perceive no basis for reducing the proposed sentence. There is no merit to defendant's argument, including his constitutional claim, that his conviction should be reduced to second-degree possession based on the subsequent change in the weight requirement for first-degree possession ( see People v Utsey, 7 NY3d 398, 404; People v Quinones, 22 AD3d 218, lv denied 6 NY3d 817). Defendant's constitutional challenge to the procedure under which he was adjudicated a second felony drug offender is also without merit ( see Almendarez-Torres v United States, 523 US 224).