People v Gutierrez
2008 NY Slip Op 04562 [51 AD3d 536]
May 20, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, July 16, 2008


The People of the State of New York, Respondent,
v
Sergio Gutierrez, Appellant.

[*1] Steven Banks, The Legal Aid Society, New York (David A. Crow of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Mark Dwyer of counsel), for respondent.

Order, Supreme Court, New York County (Edwin Torres, J.), entered on or about May 23, 2007, which denied defendant's motion for resentencing pursuant to the Drug Law Reform Act (L 2005, ch 643), unanimously reversed, on the law, and the matter remanded for a de novo determination in accordance with the decision herein.

The record does not establish any compliance with the statutory mandate (L 2005, ch 643, § 1) that "[t]he court shall offer an opportunity for a hearing and bring the applicant before it" (see People v Figueroa, 21 AD3d 337 [2005], lv denied 6 NY3d 753 [2005]). Additionally, by merely reciting that "substantial justice requires that this motion be denied," the court's order denying the motion did not comply with the requirement that any such order "must include written findings of fact and the reasons for such an order" (L 2005, ch 643, § 1, supra; see People v Williams, 45 AD3d 1377 [2007]). Accordingly, we remand for a new determination to be made in compliance with these requirements. Concur—Gonzalez, J.P., Catterson, McGuire and Moskowitz, JJ.