PEOPLE v. MARCHENA (2009)

Order, Supreme Court, New York County (Edwin Torres, J.), entered on or about February 9, 2006, which denied defendant's motion for resentencing under the Drug Law Reform Act, unanimously affirmed.

Defendant, who is similarly situated to the defendant in People v. Paniagua, 45 A.D.3d 98, 841 N.Y.S.2d 506 [2007], lv. denied 9 N.Y.3d 992, 848 N.Y.S.2d 610, 878 N.E.2d 1026 [2007], is ineligible for resentencing on his class A-II felony conviction, notwithstanding the fact that he was resentenced on his A-I felony conviction under the 2004 DLRA (L. 2004, ch. 738).   We find no basis upon which to distinguish Paniagua, and we have no authority to rewrite, or grant dispensations from, the applicable statutes.

To the extent that defendant is requesting, in the alternative, that this Court reduce the present sentence of 8 1/313 years to life on his A-II conviction to a term of 3 years to life, that request is not properly before this Court.   Defendant has already unsuccessfully appealed from the underlying judgment of conviction (303 A.D.2d 295, 759 N.Y.S.2d 3 [2003], lv. denied 100 N.Y.2d 584, 764 N.Y.S.2d 394, 796 N.E.2d 486 [2003] ), and this appeal is only from the order denying resentencing under the DLRA.