People v. Highsmith

• Decision Date: 30 December 2010
• Citation: 79 A.D.3d 1741,917 N.Y.S.2d 791
• Parties: The PEOPLE of the State of New York, Respondent, v. Roy HIGHSMITH, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 791
79 A.D.3d 1741

The PEOPLE of the State of New York, Respondent,
v.
Roy HIGHSMITH, Defendant-Appellant.

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

Dec. 30, 2010.

917 N.Y.S.2d 792

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant-Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.

PRESENT: MARTOCHE, J.P., SMITH, FAHEY, PERADOTTO, AND GREEN, JJ.

MEMORANDUM:

Defendant appeals from an order granting his application for resentencing upon his conviction of criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [former (1) ] ), pursuant to the 2004 Drug Law Reform Act ( [DLRA-1] L. 2004, ch. 738, § 23), and for resentencing upon his conviction of two counts of criminal sale of a controlled substance in the second degree (§ 220.41[1] ), pursuant to the 2005 Drug Law Reform Act ( [DLRA-2] L. 2005, ch. 643, § 1). The order also specified that, for each of the three counts, County Court would impose a determinate sentence of eight years plus a period of postrelease supervision of five years. Defendant failed to preserve for our review his contention that County Court failed to "offer an opportunity for a hearing and bring [him] before it" (L. 2005, ch. 643, § 1; L. 2004, ch. 738, § 23; see CPL 470.05[2] ). Contrary to defendant's contention, "[t]here was no mode of proceedings error in this matter and, thus, any alleged error required preservation" ( People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160). In any event, we conclude that "the critical facts here were uncontested, making it unnecessary for the court to [conduct] an evidentiary hearing" ( People v. Burgos, 44 A.D.3d 387, 387, 843 N.Y.S.2d 59, lv. dismissed 9 N.Y.3d 990, 848 N.Y.S.2d 607, 878 N.E.2d 1023).

Defendant contends that the court had authority to reduce the conviction of criminal possession of a controlled substance in the first degree, an A-I drug felony, to criminal possession of a controlled substance in the second degree, an A-II drug felony, on the ground that defendant was convicted of possessing an amount of cocaine that does not meet the weight requirement for the A-I drug felony set forth in the statute as amended by DLRA-1. We reject that contention inasmuch as DLRA-1 "does not permit the court to disturb the underlying class A-I felony...