        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

534
KA 06-00414
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DOUGLAS WORTH, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


BETH A. RATCHFORD, ROCHESTER, FOR DEFENDANT-APPELLANT.

DOUGLAS WORTH, DEFENDANT-APPELLANT PRO SE.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Joseph
D. Valentino, J.), entered January 9, 2006 pursuant to the 2005 Drug
Law Reform Act. The order denied defendant’s application to be
resentenced upon defendant’s 1994 conviction of criminal sale of a
controlled substance in the second degree and criminal possession of a
controlled substance in the third degree.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from an order
denying his application for resentencing upon his 1994 conviction of
criminal sale of a controlled substance in the second degree and
criminal possession of a controlled substance in the third degree,
pursuant to the 2005 Drug Law Reform Act ([DLRA-2] L 2005, ch 643, §
1). We reject defendant’s contention that Supreme Court erred in
failing to conduct a hearing on his application. Where a person
qualifies to apply for DLRA-2 resentencing, “[t]he court shall offer
an opportunity for a hearing and bring the applicant before it” (L
2005, ch 643, § 1; see generally People v Williams, 45 AD3d 1377).
Here, however, defendant was serving a sentence for violent felony
offenses, and thus he was precluded from applying for resentencing
(see L 2005, ch 643, § 1; Correction Law § 803 [1] [d]).

     In appeal No. 2, defendant appeals from an order denying his
motion pursuant to CPL 440.20 to set aside the sentence of
imprisonment of 2a to 7 years imposed upon his 1990 conviction of
attempted burglary in the second degree. We agree with defendant that
the indeterminate sentence was illegal because the court failed to
sentence him as a second felony offender (see People v Motley [appeal
                                 -2-                           534
                                                         KA 06-00414

No. 3], 56 AD3d 1158, 1159). Because defendant is serving two
consecutive indeterminate sentences for his 1990 and 1994 convictions
with an aggregate maximum term of life in prison, we agree with him
that the legality of the 1990 sentence cannot be considered moot (see
generally People v Curley, 285 AD2d 274, 276, lv denied 97 NY2d 607).
We therefore reverse the order, grant the motion and set aside the
sentence, and we remit the matter to Supreme Court for the filing of a
predicate felony statement and resentencing in accordance with the law
(see CPL 440.20 [4]; People v Ruddy, 51 AD3d 1134, 1135, lv denied 12
NY3d 787; People v McCants, 15 AD3d 892). We note, however, that
there is no evidence in the record before us that defendant was
promised a specific term of imprisonment of 2a to 7 years as a part
of the plea agreement. Thus, we reject defendant’s contention that
his plea must be vacated based on the court’s inability to comply with
the plea agreement. Rather, if any specific sentence was promised as
part of the plea agreement, the sentencing court has the discretion to
impose that sentence or to afford defendant an opportunity to withdraw
his plea (see generally People v Selikoff, 35 NY2d 227, 239-241, cert
denied 419 US 1122).

     We have reviewed the contentions of defendant in his pro se
supplemental brief and conclude that, to the extent that they have not
been addressed by our decision herein, they are outside the scope of
the instant appeals.




Entered:   April 29, 2011                      Patricia L. Morgan
                                               Clerk of the Court
