People v. Orta

Appellate Division of the Supreme Court of New York

People v. Orta

73 A.D.3d 452, 899 N.Y.S.2d 610

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

DecidedMay 6, 2010

StatusPublished

Cited by10 cases

This text of 73 A.D.3d 452 (People v. Orta) 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. Orta, 73 A.D.3d 452, 899 N.Y.S.2d 610 (N.Y. Ct. App. 2010).

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Opinion

Appeal from order, Supreme Court, Bronx County (John E Collins, J.), entered December 2, 2009, which denied, on the ground of ineligibility, defendant’s CEL 440.46 motion to be resentenced, unanimously dismissed as moot.

Defendant contends that the motion court erred in concluding that, as a reincarcerated parole violator, defendant was ineligible for resentencing to a determinate sentence. Were we to accept that argument, the proper corrective action would be a remand to the motion court for a discretionary determination of the motion. However, during the pendency of this appeal, defendant has again been released on parole. Since he is not in custody, he is not presently eligible for resentencing (CEL 440.46 [1]). Therefore, this appeal is moot, and we do not find applicable the exception to the mootness doctrine set forth in Matter of Hearst Corp. v Clyne (50 NY2d 707, 714-715 [1980]). Concur— Andrias, J.P., Saxe, Catterson, Freedman and Abdus-Salaam, JJ.

[453]*453Motion seeking leave to file amicus curiae brief granted.

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Appeal from order, Supreme Court, Bronx County (John E Collins, J.), entered December 2, 2009, which denied, on the ground of ineligibility, defendant’s CEL 440.46 motion to be resentenced, unanimously dismissed as moot.

Defendant contends that the motion court erred in concluding that, as a reincarcerated parole violator, defendant was ineligible for resentencing to a determinate sentence. Were we to accept that argument, the proper corrective action would be a remand to the motion court for a discretionary determination of the motion. However, during the pendency of this appeal, defendant has again been released on parole. Since he is not in custody, he is not presently eligible for resentencing (CEL 440.46 [1]). Therefore, this appeal is moot, and we do not find applicable the exception to the mootness doctrine set forth in Matter of Hearst Corp. v Clyne (50 NY2d 707, 714-715 [1980]). Concur— Andrias, J.P., Saxe, Catterson, Freedman and Abdus-Salaam, JJ.

[453]*453Motion seeking leave to file amicus curiae brief granted.

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Bluebook (online)

73 A.D.3d 452, 899 N.Y.S.2d 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-orta-nyappdiv-2010.

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