People v. Golo

• Decision Date: 21 August 2013
• Citation: 970 N.Y.S.2d 604,109 A.D.3d 623,2013 N.Y. Slip Op. 05701
• Parties: The PEOPLE, etc., respondent, v. Ally GOLO, appellant.
• Court: New York Supreme Court — Appellate Division

109 A.D.3d 623
970 N.Y.S.2d 604
2013 N.Y. Slip Op. 05701

The PEOPLE, etc., respondent,
v.
Ally GOLO, appellant.

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

Aug. 21, 2013.

[970 N.Y.S.2d 605]

Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle Fenn of counsel), for respondent.

WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.

[109 A.D.3d 623]Appeal by the defendant from an order of the Supreme Court, Queens County (Margulis, J.), dated June 6, 2012, which denied, without a hearing, his motion to be resentenced pursuant to CPL 440.46 upon his conviction of criminal sale of a controlled substance in the third degree, which sentence was originally imposed, upon his plea of guilty, on June 7, 2004.

ORDERED that the order is affirmed.

The 2009 Drug Law Reform Act, codified at CPL 440.46, provides that “[a]ny person in the custody of the department of corrections and community supervision convicted of a class B felony offense defined in article two hundred twenty of the penal law which was committed prior to [January 13, 2005], who is serving an indeterminate sentence with a maximum term of more than three years, may ... apply to be resentenced” (CPL 440.46[1] ).

However, the resentencing provisions of CPL 440.46 do not apply “to any person who is serving a sentence on a conviction for or has a predicate felony conviction for an exclusion offense” (CPL 440.46[5] ). As relevant here, CPL 440.46(5)(a) defines an “exclusion offense” as “a crime for which the person was previously convicted within the preceding ten years, excluding any time during which the offender was incarcerated for [109 A.D.3d 624]any reason between the time of commission of the previous felony and the time of commission of the present felony, which was ... a violent felony offense as defined in section 70.02 of the penal law” ( id.). The 10–year “look-back” period of CPL 440.46(5)(a) is properly measured from the date of the defendant's resentencing motion ( see

[970 N.Y.S.2d 606]

People v. Sosa, 18 N.Y.3d 436, 440, 940 N.Y.S.2d 534, 963 N.E.2d 1235;People v. Brown, 85 A.D.3d 940, 941, 925 N.Y.S.2d 161;People v. Lashley, 83 A.D.3d 868, 920 N.Y.S.2d 421).

The Supreme Court denied the defendant's motion for resentencing pursuant to CPL 440.46 on the ground that he was ineligible for resentencing. The...