People v Alexander (2005 NY Slip Op 50635(U))

People v Alexander

2005 NY Slip Op 50635(U)

Decided on March 31, 2005

County Court, Monroe County

Geraci, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Before this court for decision, is defendant's "Notice of Motion for Resentencing" which he alleges is premised upon authority set forth in Criminal Procedure Law §§ 470.20 (4) and 440.20 (1) (2) (3) (4). He also asserts that the "Rockefeller Drug Law Reform," effective January 13, 2005, should be applied to his circumstances, since, on September 15, 2004, this court sentenced him, as a second felony offender, to serve a prison term of four and one-half (4½) years to nine (9) years upon entry of his plea to guilty to criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]), a class B felony. The People have responded to this request for resentencing and have asked that such relief be denied.

For the following reasons, the request for resentencing is, hereby, denied in its entirety. First, CPL § 470.20 pertains to determinations of appeals by the intermediate appellate courts and sets forth the corrective action to be taken by such courts upon reversal or modification of a judgment, sentence or order of a criminal court. This provision is inapplicable to defendant's circumstances, since, as he points out in his accompanying affidavit, no appeal was taken and none is pending. In any event, such an appeal would have been taken to the Appellate Division, Fourth Department, and not to Monroe County Court.

Second, CPL § 440.20 governs motions to set aside a sentence which may be filed by a [*2]defendant at any time after the entry of judgment upon the ground that such sentence was "unauthorized, illegally imposed or otherwise invalid as a matter of law." Absent from defendant's motion papers, however, are any allegations of fact to support the conclusory statements that the sentence imposed in this case was unauthorized, illegally obtained or otherwise invalid as a matter of law. The motion to set aside the sentence, therefore, lacks merit.

Nor do the legislative enactments signed into law by Governor George Pataki on December 14, 2004, collectively known as the "Rockefeller Drug Law Reform," apply to permit resentencing in this case. In accordance with the new laws, inmates currently serving A-1 felony sentences for drug offenses may petition for resentencing under the new determinate sentencing scheme effective January 13, 2005 (see Penal Law § 70.71). Having been convicted of a class B felony, defendant is not eligible for such discretionary resentencing.