People v Diaz

People v Diaz 2009 NY Slip Op 09150 [68 AD3d 497] December 10, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

The People of the State of New York, Respondent,
v
Alfred Diaz, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Matthew C. Williams of counsel), for respondent.

Order, Supreme Court, New York County (Charles J. Tejada, J.), entered on or about December 4, 2007, which, to the extent appealed from as limited by the brief, denied defendant's motion for resentencing pursuant to the Drug Law Reform Act of 2004 (DLRA) (L 2004, ch 738), unanimously reversed, on the law, and the matter remanded for a de novo determination.

As the People concede, a remand is necessary on defendant's application for resentencing as to his convictions for criminal sale of a controlled substance in the first degree (see People v Rampino, 55 AD3d 348 [2008]) because the DLRA required the court to offer defendant an opportunity for a hearing and bring him before it, notwithstanding that he is also serving a concurrent sentence of equal length for his first-degree conspiracy conviction, upon which he is ineligible for resentencing. Concur—Gonzalez, P.J., Friedman, McGuire, DeGrasse and Manzanet-Daniels, JJ.