PEOPLE v. DEWITT (2008)

 Defendant appeals from an order denying his pro se application for resentencing upon his 2000 conviction of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [former (1) ] ) pursuant to the 2005 Drug Law Reform Act (L. 2005, ch. 643, § 1) and his pro se motion to set aside the sentence pursuant to CPL 440.20.   County Court properly denied the application for resentencing “because defendant was eligible for parole within three years of the time of his application and thus was not eligible to be resentenced” (People v. Dunham, 46 A.D.3d 1416, 1417, 847 N.Y.S.2d 506, lv. denied 9 N.Y.3d 1033, 852 N.Y.S.2d 18, 881 N.E.2d 1205;  see People v. Smith, 45 A.D.3d 1478, 1479, 846 N.Y.S.2d 520).   Because defendant did not obtain permission to appeal the order insofar as it denied his motion pursuant to CPL 440.20, his appeal from that part of the order must be dismissed (see CPL 450.15[2];  see generally People v. Bautista, 7 N.Y.3d 838, 839 n., 823 N.Y.S.2d 754, 857 N.E.2d 49;  People v. Johnson, 145 A.D.2d 436, 437, 535 N.Y.S.2d 696, lv. denied 73 N.Y.2d 979, 540 N.Y.S.2d 1012, 538 N.E.2d 364).

It is hereby ORDERED that said appeal from the order insofar as it denied the motion to set aside the sentence is unanimously dismissed and the order is affirmed.

MEMORANDUM: