People v. Custodio

103 A.D.3d 751, 958 N.Y.S.2d 906

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 2013
• Status: Published

Opinion

Appeal by the defendant from an order of the County Court, Orange County (Freehill, J.), dated January 4, 2011, which denied his motion for resentencing pursuant to CPL 440.46 on his conviction of conspiracy in the second degree, which sentence was originally imposed, upon his plea of guilty, on September 26, 2005.

Ordered that the order is affirmed.

The County Court properly denied the defendant’s motion for resentencing pursuant to CPL 440.46 on his conviction of conspiracy in the second degree. Pursuant to the clear terms of CPL 440.46, the defendant is not eligible for resentencing on that conviction, since conspiracy in the second degree is not one of the offenses enumerated in article 220 of the Penal Law (see CPL 440.46; People v Gonzalez, 90 AD3d 781, 782 [2011]; People v Wilson, 84 AD3d 1281 [2011]; People v Williams, 84 AD3d 1279, 1280 [2011]).

The defendant’s remaining contentions are without merit. Mastro, J.P., Skelos, Leventhal and Chambers, JJ., concur.