People v. Sanford

2017 NY Slip Op 3456, 150 A.D.3d 407, 53 N.Y.S.3d 635

Opinion

Order, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), entered on or about June 12, 2012, which, to the extent appealed from, denied defendant’s CPL 440.46 motion for resentencing on a November 26, 2002 conviction of attempted criminal sale of a controlled substance in the third degree, unanimously affirmed.

The court, which granted resentencing under CPL 440.46 (1) on a December 9, 2002 conviction, correctly concluded that defendant was not entitled to resentencing under CPL 440.46 (2) on his class C felony drug conviction. That felony was set forth in a separate charging instrument, was the subject of a separate sentencing proceeding, and was adjudicated in a separate commitment order from defendant’s class B felony, notwithstanding that the sentences ran concurrently, as part of a negotiated global disposition of defendant’s pending cases. “The statutory language plainly applies where a defendant is actually committed to custody on a lower level drug felony in the same order that commits him to custody on a B felony, not where an offense for which the defendant has previously been sentenced and committed is merely referenced in the later order” (P eople v Anonymous, 85 AD3d 414, 415 [1st Dept 2011], lv denied 18 NY3d 922 [2012]). We may not rewrite the statute to make it fit the particular sequence of events that transpired here.

Concur—Acosta, J.P., Mazzarelli, Manzanet-Daniels and Webber, JJ.