New York Supreme and/or Appellate Courts Appellate Division, First Department
April 10, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
People v Caba
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.
Decided on April 10, 2012
Gonzalez, P.J., Saxe, Moskowitz, Acosta, Freedman, JJ.
Order, Supreme Court, Bronx County (John P. Collins, J.), entered on or about April 23, 2009, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.
Defendant is ineligible for resentencing because of his prior violent felony conviction, even though it did not serve as the basis for his adjudication as a second felony offender on the drug conviction upon which he seeks resentencing (see People v Steward, __ NY3d __, 2012 NY Slip Op 01099 ).
Defendant did not preserve his argument that he was entitled to a hearing on his resentencing motion (see People v Alaouie, 86 AD3d 462 ), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. There was no dispute as to the facts that led the court to make a purely legal determination that defendant was ineligible to apply for resentencing based on the uncontested facts relating to prior convictions.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 10, 2012
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