People v. Casilla

Appeal from an order of the Onondaga County Court (William D. Walsh, J.), entered September 24, 2007 pursuant to the 2005 Drug Law Reform Act. The order, among other things, denied defendant’s application for resentencing upon defendant’s 2004 conviction of criminal possession of a controlled substance in the second degree. It is hereby ordered that said appeal is unanimously dismissed. Memorandum: Defendant moved pursuant to CPL 440.20 to set aside the sentence imposed upon his conviction of criminal possession of a controlled substance in the second degree (Penal Law former § 220.18 [1]) on the ground that County Court erred in sentencing him as an A-I felony offender, rather than as an A-II felony offender. In addition, he sought a reduction of his sentence based on his minor role in the conspiracy to distribute drugs. The court had granted defendant’s previous application for resentencing pursuant to the 2005 Drug Law Reform Act ([DLRA-2] L 2005, ch 643, § 1), and defendant withdrew his appeal from the order granting that application and stating that the original sentence would stand. Nevertheless, the court treated the motion pursuant to CPL 440.20 as an application for resentencing pursuant to DLRA-2 and denied the application. On appeal, defendant contends that the court erred in failing to hold a hearing on his resentencing application and in failing to make the written findings of fact required by DLRA-2. The appeal must be dismissed. DLRA-2 does not authorize successive applications for resentencing, and thus, a fortiori, it does not authorize appeals from such applications (see L 2005, ch 643, § 1). In any event, we note that an order denying a CPL 440.20 motion is appealable only by permission (see CPL 450.15 [2]; see also People v Singh, 40 AD3d 1015 [2007], lv denied 9 NY3d 926 [2007]; People v Nichols, 35 AD3d 508 [2006], lv denied 8 NY3d 925 [2007]). Present—Scudder, P.J., Centra, Fahey, Peradotto and Pine, JJ.