Opinion
2015-12085, Ind. No. 13327/93.
11-01-2017
The PEOPLE, etc., respondent, v. Solomon WILSON, appellant.
Seymour W. James, Jr., New York, NY (David Crow of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and John F. McGoldrick of counsel), for respondent.
Seymour W. James, Jr., New York, NY (David Crow of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Schwartz, J.), dated October 28, 2015, which denied, without a hearing, his motion to be resentenced pursuant to CPL 440.46 on his conviction of criminal sale of a controlled substance in the third degree, which sentence was originally imposed, upon a nonjury verdict, on September 14, 1994.
ORDERED that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new determination of the defendant's motion in accordance herewith.
On a motion by a defendant who is eligible for resentencing pursuant to CPL 440.46, "[t]he court shall offer an opportunity for a hearing and bring the applicant before it" (L. 2004, ch. 738, § 23; see CPL 440.46[3] ; People v. Golo, 26 N.Y.3d 358, 362, 23 N.Y.S.3d 110, 44 N.E.3d 185 ; People v. Bens, 109 A.D.3d 664, 972 N.Y.S.2d 576 ). Inasmuch as this procedure was not followed in the instant case, the order appealed from must be reversed, and the matter remitted to the Supreme Court, Queens County, for a new determination of the defendant's motion to be resentenced pursuant to CPL 440.46, to be made after affording the defendant an opportunity to appear before the court, and, if necessary, for the court to conduct a hearing (see People v. Golo, 26 N.Y.3d at 363, 23 N.Y.S.3d 110, 44 N.E.3d 185 ; People v. Gregory, 143 A.D.3d 841, 841–842, 23 N.Y.S.3d 110, 44 N.E.3d 185 ; People v. Duke , 111 A.D.3d 955, 956, 975 N.Y.S.2d 466 ; People v. Allen, 105 A.D.3d 969, 963 N.Y.S.2d 335 ).
The defendant's remaining contentions either are unpreserved for appellate review or need not be reached in light of our determination.
BALKIN, J.P., HINDS–RADIX, DUFFY and CONNOLLY, JJ., concur.