People v Arana

People v Arana 2012 NY Slip Op 06746 Decided on October 9, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 9, 2012
Tom, J.P., Mazzarelli, Catterson, Renwick, DeGrasse, JJ.
8231 864⅝8

[*1]The People of the State of New York, Respondent,

v

Luis Arana, also known as Fernando Franco, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Carl S. Kaplan of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Caleb
Kruckenberg of counsel), for respondent.

Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on or about March 16, 2012, which denied defendant's CPL 440.46 motion for resentencing, unanimously reversed, on the law, and the matter remanded for a de novo determination.

The People correctly concede that defendant is entitled to be brought before the court, provided with assigned counsel if eligible, and offered an opportunity to be heard on his motion for resentencing on his class B felony convictions. Although the sentences at issue run concurrently with the life sentences defendant is serving on his class A-1 felony convictions, and this Court has upheld the denial of resentencing on those convictions (45 AD3d 311 [1st Dept 2007], lv dismissed 9 NY3d 1031 [2008]), the statutory procedural requirements still apply (see People v Diaz, 68 AD3d 497 [1st Dept 2009]). However, the motion court is under no obligation to conduct an evidentiary hearing.

We have considered and rejected defendant's argument for additional relief.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 9, 2012

CLERK