People v Ortiz

People v Ortiz 2010 NY Slip Op 08446 [78 AD3d 534] November 18, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

The People of the State of New York, Respondent,
v
Celeste Ortiz, Appellant.

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

Cyrus R. Vance, Jr., District Attorney, New York (David C. Bornstein of counsel), for respondent.

Judgment of resentence, Supreme Court, New York County (Marcy L. Kahn, J.), rendered December 18, 2009, resentencing defendant to a term of one year, with one year of postrelease supervision, unanimously affirmed.

The court granted defendant's CPL 440.46 application to reduce her sentence for her conviction of third-degree criminal sale of a controlled substance, and imposed the minimum sentence permitted by law. Defendant requests this Court to modify her determinate sentence in the interest of justice to a one-year definite sentence of imprisonment, which would not require postrelease supervision. Defendant maintains that CPL 440.46 should not be interpreted to permit only a determinate sentence upon resentencing, but should be construed as also permitting the alternative dispositions authorized under Penal Law §§ 60.04 and 70.70 for an initial sentence for a class B drug felony, including a definite sentence of one year. However, by its express terms, CPL 440.46 only permits a defendant to apply for resentencing to a determinate term.

Since defendant received the minimum legal resentence, we have no authority to reduce it further in the interest of justice (see CPL 470.20 [6]). In any event, regardless of how the statute should be interpreted, we perceive no basis for reducing defendant's sentence. Concur—Tom, J.P., Andrias, Nardelli, Acosta and DeGrasse, JJ.