Opinion
Decided May 7, 2009.
APPLICATION for a certificate granting leave to appeal to the Court of Appeals from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered January 20, 2009. The Appellate Division (1) affirmed an order of the Supreme Court, Kings County (Raymond Guzman, J.), which, after a hearing, specified and informed defendant that the court would impose three determinate prison terms of 20 years, two to be served consecutively with each other and one to be served concurrently with the other two, and a period of post-release supervision of five years, upon his conviction of criminal sale of a controlled substance in the first degree (three counts), in the event of a resentence pursuant to the Drug Law Reform Act of 2004 (L 2004, ch 738, § 23), and (2) remitted the matter to the Supreme Court, Kings County, to afford defendant an opportunity to withdraw his application for resentencing before any resentence was imposed.
Reported below, 58 AD3d 761.
Appellate Advocates, New York City ( Lisa Napoli of counsel), for appellant.
Charles J. Hynes, District Attorney, New York City ( Caroline R. Donhauser of counsel), for respondent.
OPINION OF THE COURT
The application for a certificate granting leave to appeal should be dismissed.
The 2004 Drug Law Reform Act states that "[a]n appeal in accordance with the applicable provisions of the criminal procedure law may . . . be taken as of right by the defendant from an order specifying and informing such person of the term of the determinate sentence the court would impose upon resentencing" (L 2004, ch 738, § 23). Defendant here seeks leave to appeal an Appellate Division affirmance of such an order ( 58 AD3d 761). In People v Bautista ( 7 NY3d 838) this Court held that similar language in the 2005 Drug Law Reform Act did not permit an appeal to this Court from an Appellate Division order affirming a denial of resentencing, because the act did not make such an order appealable under Criminal Procedure Law § 450.90 or § 470.60, which govern appeals to this Court. The reasoning of Bautista applies with equal force to the language at issue in this case.
Application pursuant to CPL 460.20 for a certificate granting leave to appeal dismissed by Judge SMITH in a memorandum. Publication authorized by the Court.