PEOPLE v. LaFONTAINE

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Sergio LaFONTAINE, Defendant-Appellant.

Decided: January 11, 2007

MAZZARELLI, J.P., FRIEDMAN, SULLIVAN, WILLIAMS, GONZALEZ, JJ. Campos & Wojszwilo, New York (Richard Wojszwilo of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Dana Poole of counsel), for respondent.

Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered July 29, 2005, which denied defendant's motion to be resentenced, unanimously reversed, on the law, and the matter remanded to Supreme Court for it to exercise its discretion and determine, either on the current record or on the basis of any additional submissions the parties might make, whether substantial justice dictates that the application should be denied, and, if not, to inform defendant of the new sentence it would impose.

As we recently held in People v. Arana, 32 A.D.3d 305, 820 N.Y.S.2d 251 [2006], defendant, as a person serving a sentence for an A-I drug felony, is eligible for resentencing pursuant to the Drug Law Reform Act (L. 2004, ch. 738).   Accordingly, Supreme Court erred in denying defendant's resentencing motion on the ground of ineligibility, and we reverse and remand for Supreme Court to exercise its discretion in determining whether “ substantial justice dictates that the application should be denied” (id., § 23), and, if not, to inform defendant of the new sentence it would impose (see Arana, 32 A.D.3d at 307, 820 N.Y.S.2d 251).   Supreme Court did not err, however, in denying the motion for recusal, and defendant's request for remand to a different Justice is without merit.