PEOPLE v. DESULMA

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

The PEOPLE, etc., respondent, v. Chrisner DESULMA, a/k/a Chrishner Delsulma, appellant.

Decided: February 21, 2006

ANITA R. FLORIO, J.P., PETER B. SKELOS, STEVEN W. FISHER, and ROBERT J. LUNN, JJ. Lynn W.L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Phyllis Mintz of counsel), for respondent.

Appeal by the defendant from a resentence of the Supreme Court, Kings County (Dowling, J.), imposed November 21, 2003, upon his conviction of arson in the second degree and reckless endangerment in the first degree (two counts).

ORDERED that the resentence is reversed, on the law and as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Kings County, for resentencing.

In reimposing the defendant's original sentence based solely on an order of the Supreme Court, Kings County, entered September 9, 2002, which decided the defendant's motion pursuant to CPL 440.20, the resentencing court treated the duty of resentencing as a ministerial function, and failed to exercise its own independent discretion based upon its review of all relevant factors (see People v. Farrar, 52 N.Y.2d 302, 437 N.Y.S.2d 961, 419 N.E.2d 864;  People v. Van Pelt, 186 A.D.2d 604, 588 N.Y.S.2d 397;  People v. Martinez, 136 A.D.2d 745, 523 N.Y.S.2d 914;  People v. Martinez, 124 A.D.2d 505, 508 N.Y.S.2d 180).

The defendant's remaining contentions have been rendered academic in light of the foregoing determination.

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