People v Gomez

People v Gomez 2007 NY Slip Op 05344 [41 AD3d 238] June 19, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

The People of the State of New York, Respondent,
v
Felix Gomez, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Gayle Pollack of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Sylvia Wertheimer of counsel), for respondent.

Order, Supreme Court, New York County (Richard D. Carruthers, J.), entered on or about April 7, 2006, which specified and informed defendant that the court would resentence him to a term of seven years for his conviction of criminal possession of a controlled substance in the second degree, unanimously affirmed, and the matter remitted to Supreme Court, New York County, for further proceedings upon defendant's application for resentencing.

The applicable section of the Drug Law Reform Act (L 2005, ch 643, § 1) permits a defendant to appeal, on the ground of excessiveness, from a 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 third-degree possession based on the subsequent change in the weight requirement for second-degree possession (see People v Utsey, 7 NY3d 398 [2006]; People v Quinones, 22 AD3d 218 [2005], lv denied 6 NY3d 817 [2006]). Concur—Marlow, J.P., Williams, Gonzalez, Catterson and McGuire, JJ.