People v. Graves
Opinion of the Court
It is hereby ordered that the order so appealed from is unanimously modified on the law by deleting those parts vacating the sentence imposed July 19, 2005 and imposing a new sentence and as modified the order is affirmed, the sentence imposed January 14, 2008 is vacated, and the matter is remitted to Onondaga County Court for further proceedings in accordance with the following memorandum: 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 nine 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 DLRA-2 (People v Graves, 45 AD3d 1393 [2007]).
We reject defendant’s contention that the new sentence is harsh and excessive. The court upon remittal properly set forth in its decision the reasons for the sentence, taking into consideration the magnitude of the crime and defendant’s role in the criminal enterprise, as well as the advantageous terms of defendant’s plea bargain. We therefore conclude that the court properly exercised its discretion in determining the length of the new sentence (see generally People v Newton, 48 AD3d 115, 119-120 [2007]; People v Anonymous, 33 AD3d 336 [2006]). 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 parameters of Penal Law § 70.71 (2) (b) (ii).
The court erred, however, 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 (see People v Love, 46 AD3d 919, 921 [2007], lv denied 10 NY3d 842 [2008]; see generally People v Loyd, 53 AD3d 679, 680 [2008]). Pursuant to DLRA-2, upon granting an application for resentencing,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.