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Hearing Required for Motion for Resentencing

The Second Department explained the hearing requirement of Criminal Procedure Law 440.46 (re: a motion for resentencing) as follows:

CPL 440.46(3), provides, in pertinent part, that “[t]he provisions of section twenty three of chapter seven hundred thirty eight of the laws of two thousand four shall govern the proceedings on and determination of a motion brought pursuant to this section.” Section 23 of chapter 738 of the Laws of 2004 states, in pertinent part: “The court shall offer an opportunity for a hearing and bring the applicant before it. The court may also conduct a hearing, if necessary, to determine . . . any controverted issue of fact relevant to the issue of sentencing.” The defendant’s presence is not required where the court determines as a matter of law that a defendant is not entitled to relief pursuant to CPL 440.46 …. However, here, the People conceded that the defendant met the statutory requirements for relief pursuant to CPL 440.46, and the question before the court was whether substantial justice dictated that the motion should be denied. Thus, the defendant is entitled to appear before the court and to be given an opportunity to be heard .. . Since the defendant was not brought before the court, and there is no indication that he knowingly, intentionally, and voluntarily relinquished that right …, the order appealed from must be reversed, and the matter remitted to the County Court, Suffolk County, for a new determination of the defendant’s motion, to be made after affording him an opportunity to appear before the court, and, if necessary, conducting a hearing … . People v Allen, 2013 NY slip Op 02586, 2011-11680, Ind No 1087/98, 2nd Dept 4-17-13

 

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