People v. McCloud

52 A.D.3d 1253, 858 N.Y.S.2d 638

Opinion

Appeal from an order of the Erie County Court (Timothy J. Drury, J.), entered October 10, 2006 pursuant to the 2005 Drug Law Reform Act. The order denied defendant’s application to be resentenced upon defendant’s 1994 conviction of criminal sale of a controlled substance in the second degree.

It is hereby ordered that the order so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from an order denying his application for resentencing pursuant to the 2005 Drug Law Reform Act ([DLRA-2] L 2005, ch 643, § 1). Contrary to the contention of defendant, County Court properly denied his application because he was eligible for parole within three years and thus was ineligible for resentencing pursuant to DLRA-2 (see People v Smith, 45 AD3d 1478, 1479 [2007]). We reject the further contention of defendant that he was denied due process based on the absence of a stenographic record of the resentencing hearing inasmuch as he failed to demonstrate that he was prejudiced thereby (see generally People v Cameron, 219 AD2d 662, 663 [1995], lv denied 87 NY2d 1017 [1996]). Present— Hurlbutt, J.P, Martoche, Lunn, Green and Gorski, JJ.