THE PEOPLE OF THE STATE OF NEW YORK v. EARL COLEMAN (2011)

MEMORANDUM AND ORDER

Calendar Date:  March 22, 2011

Appeal from an order of the County Court of Sullivan County (LaBuda, J.), entered January 26, 2010, which denied defendant's motion for resentencing pursuant to CPL 440.46.

Defendant was convicted of two counts of criminal sale of a controlled substance in the third degree following a jury trial and, in 2001, was sentenced as a persistent felony offender to an aggregate prison term of 15 years to life.   County Court thereafter denied defendant's motion for resentencing pursuant to CPL 440.46, finding him to be ineligible under the terms of that statute.   Defendant now appeals.

We reverse.  CPL 440.46(4) affords indigent defendants the right to assigned counsel for “the preparation of and proceedings on motions” made under that section.   In his initial motion papers, defendant alleged that he was indigent and requested that counsel be assigned, but County Court took no action to investigate that request.   Contrary to the People's argument, the record is devoid of evidence that defendant wished to represent himself or that he was adequately warned of the perils of doing so;  indeed, he reiterated his request that counsel be assigned after the People argued that he was ineligible for resentencing (see People v. James, 13 AD3d 649, 650 [2004], lv denied 5 NY3d 764 [2005] ).   At a minimum, defendant's requests triggered County Court's “obligation to inquire further into [his] eligibility for and desire for the appointment of counsel,” and we remit this matter so that it may do so (People v. McKiernan, 84 N.Y.2d 915, 916 [1994];  see People v. Ross, 67 N.Y.2d 321, 325–326 [1986];  People v. Lasch, 309 A.D.2d 1086, 1087–1088 [2003] ).   In light of the foregoing, defendant's remaining arguments are academic.

Mercure, J.P., Rose, Stein and Egan Jr., JJ., concur.

ORDERED that the order is reversed, on the law, and matter remitted to the County Court of Sullivan County for further proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court