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People v. Marchena

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 17, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JESUS MARCHENA, DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Edwin Torres, J.), entered on or about February 9, 2006, which denied defendant's motion for resentencing under the Drug Law Reform Act, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., Nardelli, Catterson, DeGrasse, JJ.

6192/00

Defendant, who is similarly situated to the defendant in People v Paniagua (45 AD3d 98 [2007], lv denied 9 NY3d 992 [2007]), is ineligible for resentencing on his class A-II felony conviction, notwithstanding the fact that he was resentenced on his A-I felony conviction under the 2004 DLRA (L 2004, ch 738). We find no basis upon which to distinguish Paniagua, and we have no authority to rewrite, or grant dispensations from, the applicable statutes.

To the extent that defendant is requesting, in the alternative, that this Court reduce the present sentence of 8 years to life on his A-II conviction to a term of 3 years to life, that request is not properly before this Court. Defendant has already unsuccessfully appealed from the underlying judgment of conviction (303 AD2d 295 [2003], lv denied 100 NY2d 584 [2003]), and this appeal is only from the order denying resentencing under the DLRA.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090317

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