People v. De Jesus

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: PER CURIAM; COOKE; FUCHSBERG
• Citation: People v. De Jesus, 446 N.Y.S.2d 201, 54 N.Y.2d 447, 430 N.E.2d 1254 (N.Y. 1981)
• Decision Date: 17 December 1981
• Parties: , 430 N.E.2d 1254 The PEOPLE of the State of New York, Respondent, v. Raymond DE JESUS, Appellant.

Page 201

446 N.Y.S.2d 201

54 N.Y.2d 447, 430 N.E.2d 1254

The PEOPLE of the State of New York, Respondent, v. Raymond DE JESUS, Appellant.

Court of Appeals of New York.

Dec. 17, 1981.

Adrian Johnson and David C. Leven, New York City, for appellant.

Mario Merola, Dist. Atty. (David H. Fromm and Alan D. Marrus, Asst. Dist. Attys., of counsel), for respondent.

OPINION OF THE COURT

PER CURIAM.

Defendant applied for resentencing pursuant to section 60.09 of the Penal Law. This section, which permits resentencing of persons convicted of class A-II and A-III drug felonies, was enacted to undo the perceived harsh sentencing consequences of the 1973 drug laws where appropriate (see Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 60.09 p. 56). The statutory language of section 60.09 leaves room but for one conclusion--that the decision to grant such an application for resentencing is discretionary.

The present appeal is from an order of the Appellate Division, 83 A.D.2d 798, 446 N.Y.S.2d 1020, dismissing the appeal taken by defendant from the denial of his application for resentencing. Jurisdiction to this court is predicated upon CPL 470.60 (subd. 3). It is fundamental that in the absence of a statute expressly authorizing a criminal appeal, there is no right to appeal in a criminal case in this State (see Matter of State of New York v. King, 36 N.Y.2d 59, 63, 364 N.Y.S.2d 879, 324 N.E.2d 351). Since there is no statutory provision upon which an appeal from the denial of an application for resentencing pursuant to section 60.09 of the Penal Law may be predicated, we conclude that the Appellate Division properly dismissed defendant's appeal. It is important to note that defendant is not seeking to appeal from either a sentence or a resentence, but instead seeks to appeal from the denial of an application for resentencing in accordance with section 60.09 of the Penal Law. Accordingly, CPL 450.10 (subd. 2) and 450.30 (subds. 1, 2) have no application. Additionally, the present situation does not fall within the limited grounds upon which an appeal may be taken from the denial of a motion for resentencing (CPL 450.15, subd. 2; 440.20). Similarly, no appeal may be had pursuant to CPL 450.15 (subd. 1); and, of course, section 60.09 of the Penal Law does not itself provide for an appeal. Indeed, we are required to conclude that since the Legislature failed to provide for an appeal from the denial of an application for resentencing pursuant to section 60.09 of the Penal Law, no...