State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 19, 2016 107095 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

JAMES LEE,

Appellant.

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Calendar Date: April 18, 2016

Before: Lahtinen, J.P., McCarthy, Garry, Rose and Aarons, JJ.

__________

Torrance L. Schmitz, Vestal, for appellant, and appellant

pro se.

Weeden A. Wetmore, District Attorney, Elmira (Sophie J.

Marmor of counsel), for respondent.

__________

Lahtinen, J.P.

Appeal from an order of the County Court of Chemung County

(Hayden, J.), entered August 28, 2014, which denied defendant's

motion for resentencing pursuant to CPL 440.46.

In 2001, defendant was convicted of three counts of

criminal sale of a controlled substance in the third degree, one

count of criminal possession of a controlled substance in the

third degree and one count of criminal possession of a controlled

substance in the fourth degree. He was sentenced as a second

felony offender to four prison terms of 121⁄2 to 25 years on the

criminal sale and third-degree criminal possession convictions

and a prison term of 71⁄2 to 15 years on the fourth-degree criminal

possession conviction, all sentences to run concurrently. His
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conviction was later affirmed on appeal (People v Lee, 303 AD2d

839 [2003], lv denied 100 NY2d 622 [2003]).

In 2009, defendant made a pro se motion pursuant to CPL

440.46 to be resentenced on these crimes. County Court denied

the motion on the ground that a prior violent felony conviction

rendered him ineligible for resentencing. This Court reversed

and remitted the matter to County Court to reconsider defendant's

motion in light of the relevant factors (People v Lee, 110 AD3d

1346 [2013]). On remittal, County Court again denied defendant's

motion, finding that he was not entitled to resentencing on the

fourth-degree criminal possession conviction, a class C felony,

because the provisions of CPL 440.46 applied only to class B

felonies. Nevertheless, the court proceeded to review

defendant's criminal history, the circumstances underlying his

conviction, his prison disciplinary record and his

accomplishments while in prison, and concluded that substantial

justice would not be served by resentencing him. Defendant now

appeals.

Initially, the People concede, and we agree, that County

Court erred in finding that defendant was ineligible to be

resentenced on the crime of criminal possession of a controlled

substance in the fourth degree because it is a class C felony. 

The statute clearly provides for resentencing on a class C felony

where, as here, the original sentence was imposed at the same

time as the sentences on the class B felonies (see CPL 440.46

[2]). Accordingly, defendant was eligible to be resentenced on

this crime. 

Notwithstanding this error, County Court proceeded to

consider the merits of defendant's motion. Under CPL 440.46, an

eligible defendant shall be resentenced "unless 'substantial

justice dictates that the application should be denied'" (People

v Davis, 128 AD3d 1269, 1269 [2015], quoting L 2004, ch 738 § 23;

see People v Carpenter, 86 AD3d 721, 721 [2011]). Here, County

Court considered defendant's lengthy criminal history, including

a conviction for escape in the first degree arising from his

escape from jail in 2001, his prison disciplinary record and his

failure to take responsibility for his crimes. The court also

took into account defendant's accomplishments while in prison,
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but concluded that substantial justice would not be served by

resentencing in light of the other factors. Under the

circumstances presented, we find that County Court did not abuse

its discretion in denying defendant's motion (see People v Davis,

128 AD3d at 1270; People v Allen, 118 AD3d 1048, 1049 [2014], lv

denied 24 NY3d 958 [2014]; People v Buckery, 98 AD3d 1191 [2012],

lv denied 20 NY3d 1009 [2013]). We have considered the

contentions raised in defendant's pro se brief and find them to

be unavailing.

McCarthy, Garry, Rose and Aarons, JJ., concur.

ORDERED that the order is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court