People v. Desulma

26 A.D.3d 443, 809 N.Y.S.2d 208

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 2006
• Status: Published

Opinion

Appeal by the defendant from a resentence of the Supreme Court, Kings County (Dowling, J.), imposed November 21, 2003, upon his conviction of arson in the second degree and reckless endangerment in the first degree (two counts).

Ordered that the resentence is reversed, on the law and as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Kings County, for resentencing.

In reimposing the defendant’s original sentence based solely on an order of the Supreme Court, Kings County, entered September 9, 2002, which decided the defendant’s motion pursuant to CPL 440.20, the resentencing court treated the duty of resentencing as a ministerial function, and failed to exercise its own independent discretion based upon its review of all relevant factors (see People v Farrar, 52 NY2d 302 [1981]; People v Van Pelt, 186 AD2d 604 [1992]; People v Martinez, 136 AD2d 745 [1988]; People v Martinez, 124 AD2d 505 [1986]).

The defendant’s remaining contentions have been rendered academic in light of the foregoing determination. Florio, J.P., Skelos, Fisher and Lunn, JJ., concur.