People v. Bustamante

Appellate Division of the Supreme Court of New York

People v. Bustamante

62 A.D.3d 1209, 878 N.Y.S.2d 921

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 28, 2009

StatusPublished

Cited by3 cases

This text of 62 A.D.3d 1209 (People v. Bustamante) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Bustamante, 62 A.D.3d 1209, 878 N.Y.S.2d 921 (N.Y. Ct. App. 2009).

Pincite

Opinion

Malone Jr., J.

Appeal from an order of the County Court of Columbia County (Nichols, J.), entered December 13, 2007, which denied defendant’s motion for resentencing pursuant to the Drug Law Reform Act of 2005.

In 1991, defendant was convicted of criminal possession of a controlled substance in the second degree—a class A-II nonviolent felony—and was sentenced to a prison term of four years to life. He was released to parole supervision in 1995 but thereafter incarcerated—most recently in 2007—on three separate occasions for violations of parole. On this appeal, defendant asserts that County Court improperly denied his application for resentencing pursuant to the Drug Law Reform Act of 2005 (L 2005, ch 643, § 1 [hereinafter 2005 DLRA]) without a hearing.

“[O]nce a defendant has been released to parole supervision for a class A-II drug felony conviction, he or she no longer qualifies for 2005 DLRA relief for that particular conviction” (People v Mills, 11 NY3d 527, 537 [2008]; People v McCloud, 38 AD3d 1056, 1057 [2007], lv dismissed 8 NY3d 947 [2007]). Inasmuch as defendant was clearly ineligible, as a matter of law, for resentencing pursuant to the 2005 DLRA, County Court’s denial of his application without a hearing was proper (see People v Salvatierra, 51 AD3d 1218, 1219 [2008], lv dismissed 10 NY3d 964 [2008]). Defendant’s remaining arguments have been reviewed and are without merit.

Mercure, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed.

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Malone Jr., J.

Appeal from an order of the County Court of Columbia County (Nichols, J.), entered December 13, 2007, which denied defendant’s motion for resentencing pursuant to the Drug Law Reform Act of 2005.

In 1991, defendant was convicted of criminal possession of a controlled substance in the second degree—a class A-II nonviolent felony—and was sentenced to a prison term of four years to life. He was released to parole supervision in 1995 but thereafter incarcerated—most recently in 2007—on three separate occasions for violations of parole. On this appeal, defendant asserts that County Court improperly denied his application for resentencing pursuant to the Drug Law Reform Act of 2005 (L 2005, ch 643, § 1 [hereinafter 2005 DLRA]) without a hearing.

“[O]nce a defendant has been released to parole supervision for a class A-II drug felony conviction, he or she no longer qualifies for 2005 DLRA relief for that particular conviction” (People v Mills, 11 NY3d 527, 537 [2008]; People v McCloud, 38 AD3d 1056, 1057 [2007], lv dismissed 8 NY3d 947 [2007]). Inasmuch as defendant was clearly ineligible, as a matter of law, for resentencing pursuant to the 2005 DLRA, County Court’s denial of his application without a hearing was proper (see People v Salvatierra, 51 AD3d 1218, 1219 [2008], lv dismissed 10 NY3d 964 [2008]). Defendant’s remaining arguments have been reviewed and are without merit.

Mercure, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed.

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Bluebook (online)

62 A.D.3d 1209, 878 N.Y.S.2d 921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bustamante-nyappdiv-2009.

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