People v Kearse

People v Kearse 2007 NY Slip Op 10352 [46 AD3d 1456] December 21, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

The People of the State of New York, Respondent, v Maurice Kearse, Appellant.

—[*1] Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), for defendant-appellant.

Andrew M. Cuomo, Attorney General, Albany (Lisa Fleischmann of counsel), for respondent.

Appeal from a new sentence of the Onondaga County Court (William D. Walsh, J.), rendered May 8, 2006 imposed upon defendant's conviction of criminal possession of a controlled substance in the second degree. Defendant was resentenced pursuant to the 2005 Drug Law Reform Act upon his 2004 conviction.

It is hereby ordered that the sentence so appealed from be and the same hereby is unanimously reversed on the law and the matter is remitted to Onondaga County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a new sentence pursuant to the 2005 Drug Law Reform Act ([DLRA-2] L 2005, ch 643, § 1) granted upon his application to be resentenced upon his 2004 conviction of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [former (1)]). Defendant's contentions are the same as those raised by the defendant in People v Williams (45 AD3d 1377 [2007]) and, for reasons stated in our decision in that case, we reverse the sentence and remit the matter to County Court to determine defendant's application in compliance with DLRA-2. Present—Scudder, P.J., Hurlbutt, Lunn, Fahey and Pine, JJ.