PEOPLE v. BENITEZ FERNANDEZ (2012)

In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ). In appeal No. 2, defendant appeals from an order denying his application for resentencing pursuant to CPL 440.46, the 2009 Drug Law Reform Act (DLRA–3).

Addressing first the order in appeal No. 2, we note that, “[w]hen a defendant moves for resentencing under [DLRA–3], the defendant is entitled to be brought before the court and given an opportunity to be heard” (People v. Jenkins, 86 A.D.3d 522, 522, 927 N.Y.S.2d 598; see CPL 440.46[3]; L 2004, ch 738, § 23; People v. Rampino, 55 A.D.3d 348, 349, 865 N.Y.S.2d 77). Defendant contends that County Court failed to comply with the statutory mandate that “[t]he court shall ․ bring the applicant before it” (L 2004, ch 738, § 23; see People v. Scarborough, 88 A.D.3d 585, 585–586, 931 N.Y.S.2d 495; Jenkins, 86 A.D.3d at 522–523, 927 N.Y.S.2d 598; People v. Moreno, 58 A.D.3d 643, 644, 871 N.Y.S.2d 346). It is undisputed that defendant was never before the court on his resentencing motion. The People respond that defendant waived his right to be brought before the court when defense counsel submitted the motion for resentencing on the papers. “There is nothing in the record, however, to support any inference that the defendant was ever advised of his statutory right to be brought before the court, or that he knowingly, intentionally, and voluntarily chose to relinquish that right” (Moreno, 58 A.D.3d at 644, 871 N.Y.S.2d 346). We nevertheless conclude that defendant failed to preserve his contention for our review (see People v. Murray, 89 A.D.3d 567, 568, 933 N.Y.S.2d 15; see generally People v. Williams, 90 A.D.3d 1547, 1547–1548, 934 N.Y.S.2d 901). Defense counsel did not object to defendant's absence at oral argument on the motion for resentencing, nor did he object when the court decided the motion in the absence of defendant from the courtroom (see Murray, 89 A.D.3d at 568, 933 N.Y.S.2d 15; cf. People v. Garcia, 74 A.D.3d 477, 478, 901 N.Y.S.2d 837). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Although defendant is eligible to apply for resentencing under DLRA–3 (see CPL 440.46[1] ), we conclude that the court “did not abuse its discretion in determining that substantial justice required denial of his application” (People v. Gatewood, 87 A.D.3d 825, 826, 928 N.Y.S.2d 485, lv denied 17 N.Y.3d 903, 933 N.Y.S.2d 658, 957 N.E.2d 1162; see CPL 440.46 [3]; L 2004, ch 738, § 23; see e.g. People v. Hickman, 85 A.D.3d 1057, 1057–1058, 925 N.Y.S.2d 865, lv denied 18 N.Y.3d 859, 938 N.Y.S.2d 867, 962 N.E.2d 292; People v. Wilson, 85 A.D.3d 1069, 1069–1070, 925 N.Y.S.2d 877, lv denied 17 N.Y.3d 863, 932 N.Y.S.2d 28, 956 N.E.2d 809). We note in particular that defendant absconded prior to sentencing on the conviction in appeal No. 1, and he remained at liberty for approximately 14 years until he was involuntarily returned on a warrant.

With respect to the judgment in appeal No. 1, we agree with defendant that the sentence is unduly harsh and severe. Thus, as a matter of discretion in the interest of justice (see CPL 470.15[6][b] ), we modify the judgment by reducing the sentence to an indeterminate term of incarceration of 5 to 15 years.

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence to an indeterminate term of incarceration of 5 to 15 years.

MEMORANDUM: