PEOPLE v. KEARSE (2009)

Defendant appeals from an order pursuant to the 2005 Drug Law Reform Act ( [DLRA-2] L 2005, ch 643, § 1) granting his application for resentencing upon his conviction of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [former (1) ] ) and specifying that County Court would impose a determinate sentence of eight years plus a period of post release supervision of five years. We previously reversed an order granting defendant's application for resentencing, and we remitted the matter to County Court to determine defendant's application in compliance with DLRA-2 (People v. Kearse, 46 A.D.3d 1456, 847 N.Y.S.2d 493).

We reject defendant's contention that the proposed new sentence is harsh and excessive. The court upon remittal properly set forth in its decision the reasons for the proposed new sentence, taking into consideration the magnitude of the crime, defendant's prior criminal history, and the advantageous terms of the plea bargain (see People v. Lerario, 50 A.D.3d 1396, 856 N.Y.S.2d 695, lv denied 10 N.Y.3d 961, 863 N.Y.S.2d 145, 893 N.E.2d 451; see generally People v. Boatman, 53 A.D.3d 1053, 861 N.Y.S.2d 882). We thus conclude that the court properly exercised its discretion in determining the length of the proposed new sentence. We further reject defendant's contention that the proposed new sentence was unauthorized as a matter of law. Even assuming, arguendo, that defendant's contention is properly raised on an appeal from a specifying order (see L 2005, ch 643, § 1), we conclude that the proposed new sentence falls within the sentencing parameters of Penal Law § 70.71(3)(b)(ii). We therefore affirm the order and remit the matter to County Court to afford defendant an opportunity to withdraw his application for resentencing before the proposed new sentence is imposed, as required by DLRA-2 (see Boatman, 53 A.D.3d at 1054, 861 N.Y.S.2d 882).

It is hereby ORDERED that the order so appealed from is unanimously affirmed and the matter is remitted to Onondaga County Court for further proceedings.

MEMORANDUM: