People v. Horning

Appellate Division of the Supreme Court of New York

People v. Horning

2016 NY Slip Op 6747, 143 A.D.3d 520, 39 N.Y.S.3d 423

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

DecidedOctober 13, 2016

Docket2637/97 1892 1891

StatusPublished

Cited by5 cases

This text of 2016 NY Slip Op 6747 (People v. Horning) 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.

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People v. Horning, 2016 NY Slip Op 6747, 143 A.D.3d 520, 39 N.Y.S.3d 423 (N.Y. Ct. App. 2016).

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Opinion

Order, Supreme Court, New York County (Arlene D. Goldberg, J.), entered on or about August 10, 2012, which, upon reconsideration, adhered to its prior order, entered on or about December 22, 2011, which denied defendant’s motion for resentencing pursuant to the Drug Law Reform Act of 2005, unanimously affirmed. Appeal from order, same court and Justice, entered on or about December 22, 2011, unanimously dismissed, as subsumed in the appeal from the subsequent order.

The court correctly concluded that defendant, who was convicted of a class A-II drug felony, is not eligible for resentencing under the 2005 Drug Law Reform Act (L 2005, ch 643, § 1). A defendant is ineligible for resentencing under that Act where he or she is within three years of parole eligibility (People v Mills, 11 NY3d 527, 536 [2008]). Moreover, “once a defendant has been released to parole supervision for a class A-II drug felony conviction, he or she no longer qualifies for 2005 [Drug Law Reform Act] relief for that particular conviction” (i d. at 537).

The fact that defendant may have been eligible for resentenc-ing under another Drug Law Reform Act, applicable to persons convicted of other types of drug felonies, and containing different provisions, does not create eligibility where it does not otherwise exist (see People v Bustamante, 124 AD3d 1132, 1133 [3d Dept 2015], lv denied 25 NY3d 1070 [2015]), and we have no authority to rewrite the applicable statute. Defendant’s equal protection and due process objections to the statutory resentencing criteria are unpreserved (see Mills, 11 NY3d at 536) and without merit (see People v Paniagua, 45 AD3d 98, 109-110 [1st Dept 2007], lv denied 9 NY3d 992 [2007]).

Since the denial of resentencing was correct, this Court has no lawful basis upon which to reduce defendant’s sentence to a determinate sentence (see People v Ramirez, 120 AD3d 1136 [1st Dept 2014], lv denied 25 NY3d 1076 [2015]). Aside from the fact that this is an appeal from the denial of resentencing, and not from the underlying sentence itself, this Court’s discretionary powers do not extend to the imposition of an un *521 lawful sentence (see People v Rivera, 90 AD3d 510 [1st Dept 2011], lv denied 18 NY3d 928 [2012]).

Concur — Friedman, J.P., Richter, Feinman, Kapnick and Kahn, JJ.

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Order, Supreme Court, New York County (Arlene D. Goldberg, J.), entered on or about August 10, 2012, which, upon reconsideration, adhered to its prior order, entered on or about December 22, 2011, which denied defendant’s motion for resentencing pursuant to the Drug Law Reform Act of 2005, unanimously affirmed. Appeal from order, same court and Justice, entered on or about December 22, 2011, unanimously dismissed, as subsumed in the appeal from the subsequent order.

The court correctly concluded that defendant, who was convicted of a class A-II drug felony, is not eligible for resentencing under the 2005 Drug Law Reform Act (L 2005, ch 643, § 1). A defendant is ineligible for resentencing under that Act where he or she is within three years of parole eligibility (People v Mills, 11 NY3d 527, 536 [2008]). Moreover, “once a defendant has been released to parole supervision for a class A-II drug felony conviction, he or she no longer qualifies for 2005 [Drug Law Reform Act] relief for that particular conviction” (i d. at 537).

The fact that defendant may have been eligible for resentenc-ing under another Drug Law Reform Act, applicable to persons convicted of other types of drug felonies, and containing different provisions, does not create eligibility where it does not otherwise exist (see People v Bustamante, 124 AD3d 1132, 1133 [3d Dept 2015], lv denied 25 NY3d 1070 [2015]), and we have no authority to rewrite the applicable statute. Defendant’s equal protection and due process objections to the statutory resentencing criteria are unpreserved (see Mills, 11 NY3d at 536) and without merit (see People v Paniagua, 45 AD3d 98, 109-110 [1st Dept 2007], lv denied 9 NY3d 992 [2007]).

Since the denial of resentencing was correct, this Court has no lawful basis upon which to reduce defendant’s sentence to a determinate sentence (see People v Ramirez, 120 AD3d 1136 [1st Dept 2014], lv denied 25 NY3d 1076 [2015]). Aside from the fact that this is an appeal from the denial of resentencing, and not from the underlying sentence itself, this Court’s discretionary powers do not extend to the imposition of an un *521 lawful sentence (see People v Rivera, 90 AD3d 510 [1st Dept 2011], lv denied 18 NY3d 928 [2012]).

Concur — Friedman, J.P., Richter, Feinman, Kapnick and Kahn, JJ.

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Bluebook (online)

2016 NY Slip Op 6747, 143 A.D.3d 520, 39 N.Y.S.3d 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-horning-nyappdiv-2016.

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