People v Franco

People v Franco 2007 NY Slip Op 03345 [39 AD3d 365] April 19, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 6, 2007

The People of the State of New York, Respondent,
v
Nemencio Franco, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), and Chadbourne & Parke, LLP, New York (Tamara Stevenson of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Elizabeth Squires of counsel), for respondent.

Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on or about May 9, 2006, which denied defendant's motion to be resentenced, unanimously reversed, on the law, and the matter remanded to Supreme Court for it to exercise its discretion and determine, either on the current record or on the basis of any additional submissions the parties might make, whether substantial justice dictates that the application should be denied, and, if not, to inform defendant of the new sentence it would impose.

The motion court erred in denying, on the apparent ground of ineligibility, defendant's motion to be resentenced in accordance with the Drug Law Reform Act (L 2004, ch 738). Since defendant is a person serving a sentence for an A-I drug felony, he is eligible for resentencing pursuant to the Act, and, as the People concede, he is thus entitled to a remand for further proceedings on the motion as indicated (see People v LaFontaine, 36 AD3d 474 [2007]; People v Arana, 32 AD3d 305 [2006]). We reject defendant's request for reassignment of the motion to a different Justice. Concur—Mazzarelli, J.P., Sullivan, Sweeny, Malone and Kavanagh, JJ.