In People v. Bautista, 7 N.Y.3d 838, 823 N.Y.S.2d 754, 857 N.E.2d 49 (2006), we held that no statutory provision authorizes a defendant to appeal from an Appellate Division order affirming the denial of the defendant's resentencing application pursuant to the 2005 Drug Law Reform Act (L. 2005, ch. 643) (id. at 838–839, 823 N.Y.S.2d 754, 857 N.E.2d 49).Summary of this case from People v. Lovett
Argued September 7, 2006.
Decided September 21, 2006.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered February 16, 2006. The Appellate Division affirmed an order of the Supreme Court, New York County (Micki A. Scherer, J), which had denied defendant's motion to be resentenced pursuant to the Drug Law Reform Act of 2005.
People v. Bautista, 26 AD3d 230, appeal dismissed.
Center for Appellate Litigation, New York City ( Gayle Pollack and Robert S. Dean of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York City ( Christopher Marinelli of counsel), for respondent.
Prisoners' Legal Services of New York, Albany ( Joel Landau of counsel), and another, amici curiae.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT GRAFFEO, READ and R.S. SMITH.
OPINION OF THE COURT
The appeal should be dismissed. Appeals in criminal cases are strictly limited to those authorized by statute ( see People v. De Jesus, 54 NY2d 447, 449; Matter of State of New York v. King, 36 NY2d 59, 63). Except for capital cases, appeals to the Court of Appeals in criminal cases are by permission, rather than as of right, and are governed by CPL 450.90 and CPL 470.60. CPL 450.90 (1) authorizes an appeal to this Court by permission only from an "adverse or partially adverse order of an intermediate appellate court entered upon an appeal taken to such intermediate appellate court pursuant to section 450.10, 450.15, or 450.20." The order before us clearly does not come within the provisions of CPL 450.10, 450.15 or 450.20. CPL 470.60 (3) allows an appeal to this Court from an order of an intermediate appellate court dismissing an appeal to that court, and has no application here.
An order denying an application for resentencing is not equivalent to an appealable sentence ( see De Jesus, 54 NY2d at 449), or to an order denying a CPL 440.20 motion to set aside a sentence ( compare L 2005, ch 643 [orders denying applications for resentencing appealable as of right] with CPL 450.15  [orders denying motions to set aside sentences appealable by permission]).
Chapter 643 of the Laws of 2005, the unconsolidated law at issue, provides that "[a]n appeal may be taken as of right in accordance with applicable provisions of the criminal procedure law: (a) from an order denying resentencing" (L 2005, ch 643, § 1). We reject defendant's argument that chapter 643 authorizes not only an appeal as of right to the intermediate appellate court, but also an appeal to this Court by permission pursuant to CPL 450.90. The Legislature failed to mention CPL 450.90 in chapter 643 of the Laws of 2005. Moreover, the Legislature did not amend the language of CPL 450.10 or CPL 450.15 to provide in those sections for appeals to the intermediate appellate court from orders denying applications for resentencing, so as to bring such orders within the scope of CPL 450.90 (1).
Appeal dismissed in a memorandum.