People v. Cahill

Dec 21, 2007
Versions:46 A.D.3d 1455
847 N.Y.S.2d 796

Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered November 7, 2005. The judgment revoked defendant‘s sentence of probation and imposed a sentence of imprisonment.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for resentencing.

Memorandum: Defendant appeals from a judgment revoking the sentence of probation imposed upon his conviction of attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39 [1]) and sentencing him to a three-year determinate term of imprisonment and a two-year period of postrelease supervision. As the People correctly concede, Supreme Court erred in sentencing defendant in accordance with the provisions of the Drug Law Reform Act ([DLRA] L 2004, ch 738), which was enacted after the commission of the alleged sale. “[I]n enacting the DLRA, the Legislature specified that its reduced sentencing provisions . . . shall apply to crimes committed on or after the effective date thereof” (People v Utsey, 7 NY3d 398, 403 [2006]). We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court for resentencing.

In light of our determination, we do not address defendant‘s challenge to the severity of the sentence. Present—Scudder, P.J., Hurlbutt, Lunn, Fahey and Pine, JJ.