Opinion
106851.
05-19-2016
The PEOPLE of the State of New York, Respondent, v. Robert WARD, Appellant.
James E. Long, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
James E. Long, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, GARRY, ROSE and AARONS, JJ.
Opinion
McCARTHY, J. Appeal from a decision of the Supreme Court (Teresi, J.), dated May 13, 2014 in Albany County, which denied defendant's motion for resentencing pursuant to CPL 440.46.
In March 1983, defendant was convicted of burglary in the second degree, a violent felony (see Penal Law § 70.02[1][b] ). Thereafter, in January 1998, the record indicates that defendant was convicted of attempted robbery in the second degree, a violent felony (see Penal Law § 70.02[1][c] ), and sentenced to a prison term of five years. In February 2004, defendant was convicted of criminal sale of a controlled substance in the third degree, a class B felony, and was sentenced to a prison term of 12 ½ to 25 years (People v. Ward, 27 A.D.3d 776, 776, 809 N.Y.S.2d 678 [2006], lv. denied 7 N.Y.3d 764, 819 N.Y.S.2d 890, 853 N.E.2d 261 [2006] ). In January 2014, defendant moved to be resentenced on his 2004 conviction pursuant to the Drug Law Reform Act of 2009 (see L. 2009, ch. 56, as codified in CPL 440.46 ). Following a hearing, Supreme Court issued an oral decision from the bench denying the application, finding, based upon defendant's previous violent felony convictions, that he was statutorily ineligible for resentencing under the Drug Law Reform Act of 2009. Defendant now appeals.
“Appeals in criminal cases are strictly limited to those authorized by statute” (People v. Bautista, 7 N.Y.3d 838, 838–839, 823 N.Y.S.2d 754, 857 N.E.2d 49 [2006] ; see CPL 450.10, 450.15, 450.20 ; People v. Buckery, 84 A.D.3d 1588, 1588, 922 N.Y.S.2d 826 [2011] ). “The Drug Law Reform Act provides that an appeal may be taken as of right ‘from an order denying resentencing’ ” (People v. Barnett, 99 A.D.3d 1030, 1031, 951 N.Y.S.2d 919 [2012], quoting L. 2004, ch. 738, § 23). Here, however, the record contains no written order denying defendant's application for resentencing and setting forth Supreme Court's “written findings of fact and the reasons for such order” (L. 2004, ch. 738, § 23; see People v. Allen, 106 A.D.3d 1340, 1340, 965 N.Y.S.2d 388 [2013] ). Accordingly, because Supreme Court's bench decision was not reduced to the required written order, this Court lacks jurisdiction to entertain defendant's appeal, and the matter must be remitted to Supreme Court for issuance of such an order (see People v. Walker–Llanos, 92 A.D.3d 974, 974, 937 N.Y.S.2d 633 [2012] ; People v.
Civitello, 89 A.D.3d 1244, 1244, 932 N.Y.S.2d 382 [2011] ; People v. Buckery, 84 A.D.3d at 1589, 922 N.Y.S.2d 826 ; 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 Supreme Court for further proceedings not inconsistent with this Court's decision.
LAHTINEN, J.P., GARRY, ROSE and AARONS, JJ., concur.