People v. Braithwaite
| Decision Date | 26 May 2009 |
| Docket Number | 2005-11690. |
| Citation | 2009 NY Slip Op 04255,62 A.D.3d 1019,880 N.Y.S.2d 669 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES BRAITHWAITE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is,
Ordered that the motion is granted, and upon reargument, the decision and order of this Court dated December 23, 2008, is recalled and vacated (see People v Braithwaite, 57 AD3d 913 [2008]), and the following decision and order is substituted therefor:
Appeal by the defendant from an order of the Supreme Court, Kings County (Demarest, J.), dated November 9, 2005, which denied his motion for resentencing pursuant to the Drug Law Reform Act of 2004 (L 2004, ch 738) on his conviction of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree, and criminal possession of a weapon in the third degree (two counts), which sentence was originally imposed, upon a jury verdict, on October 3, 1985. Presiding Justice Prudenti has been substituted for former Associate Justice McCarthy (see 22 NYCRR 670.1 [c]).
Ordered that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for a new determination of the defendant's motion for resentencing in accordance herewith.
In 1985 the defendant was charged with criminal possession of a controlled substance in the first degree (hereinafter the 1985 possession count) and other offenses. Upon his conviction, the defendant was sentenced to an indeterminate term of imprisonment of 17 years to life on the 1985 possession count. On the same day, the defendant was sentenced for offenses charged in two 1983 indictments. With respect to those convictions, the defendant was sentenced, as a persistent felony offender, to indeterminate prison terms of 15 years to life and 17 years to life.
In 2005 the defendant moved for resentencing on the 1985 possession count pursuant to the Drug Law Reform Act of 2004. In denying the defendant's motion, the Supreme Court noted that, since the defendant was serving sentences of imprisonment with maximum terms of life in connection with the 1983 indictments, resentencing the defendant to a determinate prison term of 15 years on the 1985 possession count would have "no practical effect" upon the aggregate sentence the defendant would ultimately serve. It was subsequently determined, however, that the defendant had been improperly adjudicated...
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