People v Wilson

People v Wilson 2017 NY Slip Op 07623 Decided on November 1, 2017 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 November 1, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
SYLVIA O. HINDS-RADIX
COLLEEN D. DUFFY
FRANCESCA E. CONNOLLY, JJ.
2015-12085
(Ind. No. 13327/93)

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

v

Solomon Wilson, appellant.

Seymour W. James, Jr., New York, NY (David Crow of counsel), for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and John F. McGoldrick of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Schwartz, J.), dated October 28, 2015, which denied, without a hearing, his motion to be resentenced pursuant to CPL 440.46 on his conviction of criminal sale of a controlled substance in the third degree, which sentence was originally imposed, upon a nonjury verdict, on September 14, 1994.

ORDERED that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new determination of the defendant's motion in accordance herewith.

On a motion by a defendant who is eligible for resentencing pursuant to CPL 440.46, "[t]he court shall offer an opportunity for a hearing and bring the applicant before it" (L 2004, ch 738, § 23; see CPL 440.46[3]; People v Golo, 26 NY3d 358, 362; People v Bens, 109 AD3d 664). Inasmuch as this procedure was not followed in the instant case, the order appealed from must be reversed, and the matter remitted to the Supreme Court, Queens County, for a new determination of the defendant's motion to be resentenced pursuant to CPL 440.46, to be made after affording the defendant an opportunity to appear before the court, and, if necessary, for the court to conduct a hearing (see People v Golo, 26 NY3d at 363; People v Gregory, 143 AD3d 841, 841-842; People v Duke, 111 AD3d 955, 956; People v Allen, 105 AD3d 969).

The defendant's remaining contentions either are unpreserved for appellate review or need not be reached in light of our determination.

BALKIN, J.P., HINDS-RADIX, DUFFY and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court