People v. Peck

Appellate Division of the Supreme Court of New York

People v. Peck

46 A.D.3d 1098, 847 N.Y.S.2d 734

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

DecidedDecember 20, 2007

StatusPublished

Cited by10 cases

This text of 46 A.D.3d 1098 (People v. Peck) 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. Peck, 46 A.D.3d 1098, 847 N.Y.S.2d 734 (N.Y. Ct. App. 2007).

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Opinion

Mercure, J.P.

Appeal from a decision of the County Court of Saratoga County (Scarano, J.), entered February 1, 2006, which issued a proposed resentence of defendant following his conviction of the crime of criminal sale of a controlled substance in the second degree.

In 2004, defendant pleaded guilty to the crime of criminal sale of a controlled substance in the second degree, in full satis[1099]*1099faction of an 11-count indictment. In accordance with the plea agreement, defendant was sentenced to a prison term of 4V2 years to life. Defendant subsequently applied for resentencing pursuant to the Drug Law Reform Act of 2005 (L 2005, ch 643). Following a hearing, County Court found that defendant was eligible for resentencing and was prepared to immediately resentence defendant when he objected, stating that he had a right to appeal the proposed resentence. County Court then adjourned the hearing without issuing an order concerning resentencing, prompting this appeal by defendant.

Pursuant to the Drug Law Reform Act of 2005 (L 2005, ch 643, § 1), when a court proposes a determinate sentence of imprisonment, the resentence proposal must be issued in an order, including “written findings of fact and the reasons for such order.” Unless the defendant either withdraws the application for resentencing or appeals from the court order, the court will subsequently impose the new sentence (L 2005, ch 643, § 1). Here, County Court failed to issue an order delineating the proposed determinate sentence—including written findings of fact and the reasons supporting the order—from which defendant could appeal. Accordingly, this matter must be remitted for compliance with the controlling statute (see generally People v Hoppe, 1 AD3d 712, 713 [2003]).

Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the appeal is dismissed, and matter remitted to the County Court of Saratoga County for further proceedings not inconsistent with this Court’s decision.

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Mercure, J.P.

Appeal from a decision of the County Court of Saratoga County (Scarano, J.), entered February 1, 2006, which issued a proposed resentence of defendant following his conviction of the crime of criminal sale of a controlled substance in the second degree.

In 2004, defendant pleaded guilty to the crime of criminal sale of a controlled substance in the second degree, in full satis[1099]*1099faction of an 11-count indictment. In accordance with the plea agreement, defendant was sentenced to a prison term of 4V2 years to life. Defendant subsequently applied for resentencing pursuant to the Drug Law Reform Act of 2005 (L 2005, ch 643). Following a hearing, County Court found that defendant was eligible for resentencing and was prepared to immediately resentence defendant when he objected, stating that he had a right to appeal the proposed resentence. County Court then adjourned the hearing without issuing an order concerning resentencing, prompting this appeal by defendant.

Pursuant to the Drug Law Reform Act of 2005 (L 2005, ch 643, § 1), when a court proposes a determinate sentence of imprisonment, the resentence proposal must be issued in an order, including “written findings of fact and the reasons for such order.” Unless the defendant either withdraws the application for resentencing or appeals from the court order, the court will subsequently impose the new sentence (L 2005, ch 643, § 1). Here, County Court failed to issue an order delineating the proposed determinate sentence—including written findings of fact and the reasons supporting the order—from which defendant could appeal. Accordingly, this matter must be remitted for compliance with the controlling statute (see generally People v Hoppe, 1 AD3d 712, 713 [2003]).

Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the appeal is dismissed, and matter remitted to the County Court of Saratoga County for further proceedings not inconsistent with this Court’s decision.

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Bluebook (online)

46 A.D.3d 1098, 847 N.Y.S.2d 734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-peck-nyappdiv-2007.

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