PEOPLE v. PETERSON (2008)

 Defendant appeals from a new sentence upon his 2004 conviction of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [former (1) ] ) imposed pursuant to the 2005 Drug Law Reform Act ( [DLRA-2] L. 2005, ch. 643, § 1).   We agree with defendant that County Court erred in failing to “offer [him] an opportunity for a hearing” pursuant to DLRA-2, inasmuch as defendant was not given an opportunity to offer “any facts or circumstances relevant to the imposition of a new sentence” (L. 2005, ch. 643, § 1).   The court also erred in failing to set forth written findings of fact and the reasons for its determination to impose a determinate term of imprisonment of 9 1/212 years and a five-year period of postrelease supervision (see id.;  People v. Williams, 45 A.D.3d 1377, 1378, 845 N.Y.S.2d 602).   We therefore reverse the sentence and remit the matter to County Court to determine defendant's application in compliance with DLRA-2, including a determination whether defendant is ineligible for resentencing because he does not meet the eligibility requirements of Correction Law § 803(1)(d) (see People v. Williams, 48 A.D.3d 858, 850 N.Y.S.2d 717;  People v. Paniagua, 45 A.D.3d 98, 105-107, 841 N.Y.S.2d 506, lv. denied 9 N.Y.3d 992, 848 N.Y.S.2d 610, 878 N.E.2d 1026;  cf. People v. Sanders, 36 A.D.3d 944, 945-946, 829 N.Y.S.2d 187, lv. denied 8 N.Y.3d 927, 834 N.Y.S.2d 517, 866 N.E.2d 463).

It is hereby ORDERED that the sentence so appealed from is unanimously reversed on the law and the matter is remitted to Onondaga County Court for further proceedings.

MEMORANDUM: