PEOPLE v. COMFORT (2008)

 Defendant appeals from an order that denied his application for resentencing pursuant to the 2004 Drug Law Reform Act ( [DLRA-1] L. 2004, ch. 738, § 23) upon his 1982 conviction of one count each of criminal sale of a controlled substance in the first degree (Penal Law § 220.43) and criminal possession of a controlled substance in the first degree (§ 220.21).   We agree with defendant that the crimes of which he was acquitted should not be considered in connection with an application for resentencing pursuant to DLRA-1 (see generally People v. Wilkonson, 281 A.D.2d 373, 374, 724 N.Y.S.2d 18, lv. denied 96 N.Y.2d 926, 732 N.Y.S.2d 643, 758 N.E.2d 669;  People v. Maula, 163 A.D.2d 180, 180-181, 558 N.Y.S.2d 42).   It is unnecessary to determine whether County Court in fact considered such crimes, however, because “DLRA-1 is intended to afford relief to low level offenders and, based upon the large amount of cocaine involved in the subject transaction[ ], it is evident that defendant is not such an offender” (People v. Morales, 46 A.D.3d 1395, 1396, 848 N.Y.S.2d 486, lv. dismissed 10 N.Y.3d 768, 854 N.Y.S.2d 330, 883 N.E.2d 1265).   Furthermore, contrary to defendant's contention, “[t]he magnitude of defendant's involvement in ․ drug trafficking outweighed [defendant's] favorable prison record” (People v. Rizo, 51 A.D.3d 436, 436, 857 N.Y.S.2d 537).

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

MEMORANDUM: