People v Gonzalez

People v Gonzalez 2011 NY Slip Op 09149 Decided on December 13, 2011 Appellate Division, Second 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 December 13, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, A.P.J.
L. PRISCILLA HALL
SANDRA L. SGROI
JEFFREY A. COHEN, JJ.
2010-10055
(Ind. No. 7461/04)

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

v

Angel Gonzalez, appellant.




Lynn W. L. Fahey, New York, N.Y. (Bonnie H. Stein of counsel),
for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove and Maria Park of counsel;
Gamaliel Marrero on the brief), for
respondent.


DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Chun, J.), dated September 16, 2010, which denied that branch of his motion which was for resentencing pursuant to CPL 440.46 on his conviction of conspiracy in the second degree, and specified and informed him that the court would impose a determinate term of imprisonment of five years, with a period of three years of postrelease supervision, in the event of a resentence pursuant to CPL 440.46 on his conviction of criminal possession of a controlled substance in the third degree.

ORDERED that the order is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.

"Pursuant to the clear terms of CPL 440.46, the defendant is not eligible for resentencing on his conviction of conspiracy in the second degree, since that crime is not one of the offenses enumerated in article 220 of the Penal Law" (People v Wilson, 84 AD3d 1281, 1281; see People v Williams, 84 AD3d 1279, 1280; People v Murray, 82 AD3d 794). Moreover, the "unavailability of resentencing upon a conviction of conspiracy in the second degree does not violate the defendant's federal and state constitutional rights to equal protection of the laws" (People v Williams, 84 AD3d at 1280; see People v Wilson, 84 AD3d at 1281).

The proposed resentence on the defendant's conviction of criminal possession of a controlled substance in the third degree was not excessive (see People v Overton, 86 AD3d 4, 16; People v Medina, 81 AD3d 853, 854; People v Suitte, 90 AD2d 80).

Pursuant to the Drug Law Reform Act of 2009 (CPL 440.46), we remit this matter to the Supreme Court, Kings County, to afford the defendant an opportunity to withdraw his motion for resentencing before any resentence is imposed (see CPL 440.46[3]; L 2004, ch 738, § 23).
MASTRO, A.P.J., HALL, SGROI and COHEN, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court