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The PEOPLE of the State of New York, Respondent, v. Shawn NICOL, Defendant-Appellant.

Decided: December 30, 2009

PRESENT: HURLBUTT, J.P., PERADOTTO, CARNI, PINE, AND GORSKI, JJ. Frank H. HiscockLegal Aid Society, Syracuse (Shirley K. Duffy of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

Defendant appeals from an order pursuant to the 2005 Drug Law Reform Act ( [DLRA-2] L. 2005, ch. 643, § 1) granting his application for resentencing upon his conviction of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [former (1) ] ) and imposing a determinate term of imprisonment of seven years plus a five-year period of postrelease supervision. We previously reversed the sentence imposed following defendant's application for resentencing, and we remitted the matter to County Court to determine defendant's application in compliance with DRLA-2 (People v. Nicol, 48 A.D.3d 1067, 849 N.Y.S.2d 820).

We reject defendant's contention that the new sentence is harsh and excessive. We further conclude that the court upon remittal properly set forth in its decision the reasons for the new sentence (see People v. Boatman, 53 A.D.3d 1053, 861 N.Y.S.2d 882), and thus properly exercised its discretion in determining the length of the new sentence (see generally People v. Newton, 48 A.D.3d 115, 119-120, 847 N.Y.S.2d 645). We reject defendant's further contention that the new sentence was unauthorized as a matter of law, inasmuch as the new sentence falls within the sentencing range of Penal Law § 70.71(3)(b)(ii).

For the reasons set forth in our decision in People v. Graves, 66 A.D.3d 1513, 886 N.Y.S.2d 788, however, we conclude that the court erred in imposing the new sentence without first affording defendant the opportunity to appeal from the order specifying the new sentence that the court would impose and to withdraw his application for resentencing following our determination of that appeal. We therefore modify the order by deleting those parts vacating the original sentence and imposing a new sentence, vacate the new sentence imposed, and remit the matter to County Court to afford defendant an opportunity to withdraw his application for resentencing before the proposed new sentence is imposed, as required by DLRA-2 (see Boatman, 53 A.D.3d at 1054, 861 N.Y.S.2d 882).

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by deleting those parts vacating the sentence imposed June 15, 2004 and imposing a new sentence and as modified the order is affirmed, the sentence imposed February 26, 2008 is vacated, and the matter is remitted to Onondaga County Court for further proceedings.