PEOPLE v. PEREZ (2007)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Modesto PEREZ, Defendant-Appellant.

Decided: October 11, 2007

TOM, J.P., MAZZARELLI, FRIEDMAN, SULLIVAN, NARDELLI, JJ.

Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Dana Poole of counsel), for respondent.

Order, Supreme Court, New York County (Brenda Soloff, J.), entered on or about March 10, 2006, which denied the defendant's motion for resentencing under the 2005 Drug Law Reform Act, unanimously affirmed. Appeal from order, same court and Justice, entered on or about April 27, 2006, which denied defendant's motion for reargument, unanimously dismissed.

The court correctly denied defendant's motion on the ground that he was less than three years from his parole eligibility date when he filed the motion, and we decline defendant's invitation to revisit our holding to that effect in People v. Bautista, 26 A.D.3d 230, 809 N.Y.S.2d 62 [2006], appeal dismissed 7 N.Y.3d 838, 823 N.Y.S.2d 754, 857 N.E.2d 49 [2006]. Since defendant was clearly ineligible, as a matter of law, for resentencing, there was no reason for the court to assign counsel or conduct a hearing.

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