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The People of the State of v. Pedro Gomez

State of New York Supreme Court, Appellate Division Third Judicial Department


November 8, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
PEDRO GOMEZ, APPELLANT.

Appeal from an order of the County Court of Schenectady County (Drago, J.), entered January 24, 2011, which denied defendant's motion for resentencing pursuant to CPL 440.46.

MEMORANDUM AND ORDER

Calendar Date: September 26, 2012

Before: Peters, P.J., Mercure, Rose, Kavanagh and Stein, JJ.

After pleading guilty in 2008 to one count of criminal sale of a controlled substance in the third degree, defendant was sentenced as a second felony offender to a determinate prison term of eight years. In 2010, he moved for resentencing pursuant to the Drug Law Reform Act of 2009 (see CPL 440.46), which permits individuals who are serving indeterminate sentences for certain felony drug offenses committed prior to January 13, 2005 to apply for a reduced determinate sentence. County Court denied the motion based upon the uncontroverted facts that defendant's conviction is based upon a 2007 offense, and that he received a determinate, rather than indeterminate, sentence. Defendant appeals.

Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no non-frivolous issues to be raised on appeal. Based upon our review of the record, we agree. Therefore, the order is affirmed and counsel's request for leave to withdraw is granted (see People v Cruwys, 113 AD2d 979, 980 [1985], lv denied 67 NY2d 650 [1986]; see generally People v Stokes, 95 NY2d 633 [2001]).

Peters, P.J., Mercure, Rose, Kavanagh and Stein, JJ., concur.

ORDERED that the order is affirmed, and application to be relieved of assignment granted.

ENTER:

Robert D. Mayberger

Clerk of the Court

20121108

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