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People v. De Jesus

54 N.Y.2d 447 Court N.Y. Decision date 1981-12-17 English

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p. 447
The People of the State of New York, Respondent, v Raymond De Jesus, Appellant.
Argued November 18, 1981;
decided December 17, 1981
p. 448
POINTS OF COUNSEL
Adrian Johnson and David C. Leven for appellant.
I. The Appellate Divisions have subject matter jurisdiction over appeals as of right from the denial of a resentencing motion made pursuant to section 60.09 of the Penal Law. II. The substantive retroactive relief provided for in section 60.09 of the Penal Law renders the provisions of CPL 440.20 applicable and thus gives the Appellate Divisions subject matter jurisdiction by leave pursuant to CPL 450.15. (Matter of Hogan v Rosenberg, 24 NY2d 207 ; Matter of People v Conway, 62 AD2d 1107 ; Matter of Palmer v Mclnerney, 35 AD2d 428 ; Matter of Snee v County Ct. of County of Cayuga, 31 AD2d 303 .) III. Appellate Divisions historically have had subject matter jurisdiction over questions of due process arising in criminal matters. (People v Oskroba, 305 NY 113 ; People v Williams, 6 NY2d 193 ; People v Turner, 27 AD2d 141 ; Matter of Luckenbach, 303 NY 491 ; Mempa v Rhay, 389 US 128 ; People ex rel. Menechino v Warden, Green Haven State Prison, 27 NY2d 376 ; People ex rel. Donohoe v Montanye, 35 NY2d 221 ; People ex rel. Calloway v Skinner, 33 NY2d 23 ; Gagnon v Scarpelli, 411 US 778 ; United States v Wade, 388 US 218 .)
Mario Merola, District Attorney (David H. Fromm and Alan D. Marrus of counsel), for respondent.
Absent statutory authorization, the Appellate Division does not have jurisdiction to hear an appeal either as of right or by permission from an order denying a motion for resentencing brought pursuant to section 60.09 of the Penal Law, which empowers the sentencing court, at its discretion, to reduce the minimum term of imprisonment for an “A-II” felony conviction and to reduce the maximum term of imprisonment for an “A-III” felony conviction. (Matter of Santangello v People, 38 NY2d 536 ; Matter of State of New York v King, 36 NY2d 59 ; People v Gersewitz, 294 NY 163 ; People v Reed, 276 NY 5 ; People v Zerillo, 200 NY 443 ; People v Jeter, 39 AD2d 588 ; People v Walker, 37 AD2d 863 ; People v Fink, 35 AD2d 876 , 29 NY2d 443 ; People v Palmer, 35 AD2d 961 ; People v Gambino, 35 AD2d 967 ; People v Briggs, 34 AD2d 596 .)
p. 449
OPINION OF THE COURT

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 NY, Book 39, Penal Law, § 60.09 [Cum Supp], 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 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 NY2d 59 , 63). 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 pursuanfto 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 appeal was intended.

p. 450
In view of the procedural posture of the present case, we neither reach nor express any view on the contention that defendant had the right to a hearing or representation by counsel on an application for resentencing under section 60.09 of the Penal Law.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur in Per Curiam opinion; Judge Fuchsberg concurs in result (see his dissent in People v Stephens, 55 NY2d 778 , 779).

Order affirmed.

p. 453
The admission of the January 25, 1978 statement was not harmless error. (People v Almestica, 42 NY2d 222 ; United States ex rel. Savino v Follette, 305 F Supp 277 , 417 F2d 1070 , sub nom. People v Savino, 22 NY2d 732 ; People v Wander, 47 NY2d 724 ; People v Jones, 47 NY2d 528 ; People v Crimmins, 36 NY2d 230 ; People v Buxton, 44 NY2d 33 ; People v Valerius, 31 NY2d 51 ; People v Havelka, 45 NY2d 636 ; People v Tutt, 38 NY2d 1011 .) II. The failure to give an instruction prohibiting corroboration between accomplices was prejudicial error. (People v Jelke, 1 NY2d 321 .) III. Repugnancy: The acquittals of counts one through eight eliminated all factual substance offered by the People to support count nine. (People v Cole, 35 NY2d 911 ; People v Carbonell, 40 NY2d 948 ; People v McEaddy, 30 NY2d 519 ; People v Haymes, 34 NY2d 639 ; People v Iannone, 45 NY2d 589 ; People v Fitzgerald, 45 NY2d 574 ; People ex rel. Guido v Calkins, 10 AD2d 510 ; People v Moy, 56 AD2d 853 .)

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