The People, etc., respondent, v. Elbert Norris, appellant. (2011)

Argued—November 22, 2011

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Marrus, J.), dated March 1, 2011, which, after a hearing, inter alia, specified and informed him that, in the event of a resentence pursuant to CPL 440.46, the court would impose determinate sentences of 6 years' imprisonment and a period of postrelease supervision of 3 years in lieu of each indeterminate sentence of 5 to 10 years' imprisonment originally imposed on December 15, 2003.

ORDERED that the order is affirmed and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.

The Supreme Court properly determined that it lacked the authority under CPL 440.46 to order, upon resentence, that determinate terms run concurrently when the original indeterminate terms were ordered to run consecutively (see CPL 430.10;  People v. Acevedo, 14 NY3d 828, 831;  People v. Vaughan, 62 AD3d 122, 125–126;  see also People v. Highsmith, 79 AD3d 1741, 1742).

Pursuant to the Drug Law Reform Act of 2009 (see CPL 440.46), we remit this matter to the Supreme Court, Kings County, to afford the defendant an opportunity to withdraw his application for resentencing before any resentence is imposed (id.;   see L 2004, ch 738, § 23).

MASTRO, A.P.J., HALL, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court