People v. Bustamante , 1 N.Y.S.3d 691 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 29, 2015 104865
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
JOAQUIN BUSTAMANTE,
Appellant.
________________________________
Calendar Date: December 16, 2014
Before: Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.
__________
Janet K. Kealy, Hudson, for appellant.
Paul Czajka, District Attorney, Hudson (James A. Carlucci
of counsel), for respondent.
__________
Rose, J.
Appeal from an order of the County Court of Columbia County
(Nichols, J.), entered May 22, 2014, which denied defendant's
motion for resentencing pursuant to the Drug Law Reform Act of
2009.
In 1991, defendant was convicted of criminal possession of
a controlled substance in the second degree, a class A-II felony,
and was sentenced to a prison term of four years to life. He was
released to parole supervision in 1995, but later violated the
conditions of his parole and ultimately pleaded guilty to
criminal possession of a weapon in the second degree in 2007. He
was then sentenced to seven years in prison. Subsequently,
defendant moved to be resentenced on his 1991 conviction pursuant
to the Drug Law Reform Act of 2009 (see L 2009, ch 56
-2- 104865
[hereinafter 2009 DLRA], as codified in CPL 440.46). County
Court denied the application, based upon the Drug Law Reform Act
of 2005 (see L 2005, ch 643 [hereinafter 2005 DLRA]). Defendant
now appeals and we affirm.
We reject defendant's contention that he should have been
resentenced pursuant to the 2009 DLRA, inasmuch as that statute
applies to individuals imprisoned for class B drug felonies (see
CPL 440.46 [1]; People v Paulin, 17 NY3d 238, 243 [2011]). As
defendant was convicted of a class A-II drug felony, County Court
correctly considered his application pursuant to the 2005 DLRA
(see L 2005, ch 643, § 1; People v Mills, 11 NY3d 527, 533-534
[2008]). Further, because defendant "has been released to parole
supervision for a class A-II drug felony conviction, he . . . no
longer qualifies for 2005 DLRA relief for that particular
conviction" (People v Mills, 11 NY3d at 537; see People v
Ramirez, 120 AD3d 1136 [2014]; People v McCloud, 38 AD3d 1056,
1056-1057 [2007], lv dismissed 8 NY3d 947 [2007]), and, as such,
the court properly denied the motion.1 Although defendant also
challenges the original sentence imposed in 1991, the record
contains only a notice of appeal from the denial of the
resentencing motion and there is no indication that he ever
appealed from the original judgment of conviction.2 Accordingly,
any questions as to the original sentence are not properly before
us (see CPL 450.30 [3]; People v Pittman, 17 AD3d 930, 931 n
[2005], lv denied 5 NY3d 767 [2005]; People v Dabbs, 178 AD2d
848, 848-849 [1991], lv denied 79 NY2d 946 [1992]). We have
considered defendant's remaining contention that he was denied
the effective assistance of counsel regarding his resentencing
motion and find it to be without merit.
1
We note that defendant previously applied for
resentencing under the 2005 DLRA and County Court's denial of the
application on the same grounds was affirmed by this Court
(People v Bustamante, 62 AD3d 1209 [2009], lv dismissed 13 NY3d
742 [2009]).
2
Defendant did appeal his 2007 conviction (People v
Bustamante, 63 AD3d 561 [2009], lv denied 13 NY3d 794 [2009]).
-3- 104865
Lahtinen, J.P., McCarthy, Lynch and Clark, JJ., concur.
ORDERED that the order is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court