People v Gomez

People v Gomez 2012 NY Slip Op 07334 Decided on November 8, 2012 Appellate Division, Third 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 and Entered: November 8, 2012
104044

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

PEDRO GOMEZ, Appellant.

Calendar Date: September 26, 2012
Before: Peters, P.J., Mercure, Rose, Kavanagh and Stein, JJ.


Thomas F. Garner, Middleburgh, for appellant.
Robert M. Carney, District Attorney, Schenectady
(Gerald A. Dwyer of counsel), for respondent.


MEMORANDUM AND ORDER

Appeal from an order of the County Court of Schenectady County (Drago, J.), entered January 24, 2011, which denied defendant's motion for resentencing pursuant to CPL 440.46.

After pleading guilty in 2008 to one count of criminal sale of a controlled substance in the third degree, defendant was sentenced as a second felony offender to a determinate prison term of eight years. In 2010, he moved for resentencing pursuant to the Drug Law Reform Act of 2009 (see CPL 440.46), which permits individuals who are serving indeterminate sentences for certain felony drug offenses committed prior to January 13, 2005 to apply for a reduced determinate sentence. County Court denied the motion based upon the uncontroverted facts that defendant's conviction is based upon a 2007 offense, and that he received a determinate, rather than indeterminate, sentence. Defendant appeals.

Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no nonfrivolous issues to be raised on appeal. Based upon our review of the record, we agree. Therefore, the order is affirmed and counsel's request for leave to withdraw is granted (see People v Cruwys, 113 AD2d 979, 980 [1985], lv denied 67 NY2d 650 [1986]; see generally People v Stokes, 95 NY2d 633 [2001]).

Peters, P.J., Mercure, Rose, Kavanagh and Stein, JJ., concur. [*2]

ORDERED that the order is affirmed, and application to be relieved of assignment granted.