People v. Ward ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 19, 2016 106851
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
ROBERT WARD,
Appellant.
________________________________
Calendar Date: April 18, 2016
Before: Lahtinen, J.P., McCarthy, Garry, Rose and Aarons, JJ.
__________
James E. Long, Public Defender, Albany (Theresa M. Suozzi
of counsel), for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.
__________
McCarthy, J.
Appeal from a decision of the Supreme Court (Teresi, J.),
dated May 13, 2014 in Albany County, which denied defendant's
motion for resentencing pursuant to CPL 440.46.
In March 1983, defendant was convicted of burglary in the
second degree, a violent felony (see Penal Law § 70.02 [1] [b]).
Thereafter, in January 1998, the record indicates that defendant
was convicted of attempted robbery in the second degree, a
violent felony (see Penal Law § 70.02 [1] [c]), and sentenced to
a prison term of five years. In February 2004, defendant was
convicted of criminal sale of a controlled substance in the third
degree, a class B felony, and was sentenced to a prison term of
12½ to 25 years (People v Ward, 27 AD3d 776, 776 [2006], lv
-2- 106851
denied 7 NY3d 764 [2006]). In January 2014, defendant moved to
be resentenced on his 2004 conviction pursuant to the Drug Law
Reform Act of 2009 (see L 2009, ch 56, as codified in CPL
440.46). Following a hearing, Supreme Court issued an oral
decision from the bench denying the application, finding, based
upon defendant's previous violent felony convictions, that he was
statutorily ineligible for resentencing under the Drug Law Reform
Act of 2009. Defendant now appeals.
"Appeals in criminal cases are strictly limited to those
authorized by statute" (People v Bautista, 7 NY3d 838, 838-839,
[2006]; see CPL 450.10, 450.15, 450.20; People v Buckery, 84 AD3d
1588, 1588 [2011]). "The Drug Law Reform Act provides that an
appeal may be taken as of right 'from an order denying
resentencing'" (People v Barnett, 99 AD3d 1030, 1031 [2012],
quoting L 2004, ch 738, § 23). Here, however, the record
contains no written order denying defendant's application for
resentencing and setting forth Supreme Court's "written findings
of fact and the reasons for such order" (L 2004, ch 738, § 23;
see People v Allen, 106 AD3d 1340, 1340 [2013]). Accordingly,
because Supreme Court's bench decision was not reduced to the
required written order, this Court lacks jurisdiction to
entertain defendant's appeal, and the matter must be remitted to
Supreme Court for issuance of such an order (see People v
Walker-Llanos, 92 AD3d 974, 974 [2012]; People v Civitello, 89
AD3d 1244, 1244 [2011]; People v Buckery, 84 AD3d at 1589; People
v Peck, 46 AD3d 1098, 1099 [2007]).
Lahtinen, J.P., Garry, Rose and Aarons, JJ., concur.
-3- 106851
ORDERED that the appeal is dismissed, and matter remitted
to the Supreme Court for further proceedings not inconsistent
with this Court's decision.
ENTER:
Robert D. Mayberger
Clerk of the Court