This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 111
The People &c.,
Respondent,
v.
Cleveland Lovett,
Appellant.
Margaret E. Knight, for appellant.
Nicole Coviello, for respondent.
MEMORANDUM:
On defendant's appeal from so much of the order of the
Appellate Division as affirmed Supreme Court's order denying
defendant's motion for resentencing, the appeal should be
dismissed; and the order otherwise appealed from should be
affirmed.
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On May 29, 2003, defendant Cleveland Lovett was
convicted of criminal possession of a controlled substance in the
first and third degrees (Penal Law §§ 220.21; 220.16) and first-
degree reckless endangerment (Penal Law § 120.25) in connection
with a high-speed car chase on the West Side Highway in
Manhattan; on August 19, 2003, he was sentenced to an aggregate
term of imprisonment of 27a years to life. On June 10, 2005,
defendant, represented by new counsel, moved pursuant to CPL
440.10 to vacate the judgment. He claimed that his attorney was
ineffective because of a failure to object to portions of the
final jury charge relating to the People's burden of proof. That
same day, defendant also applied for resentencing under the 2004
Drug Law Reform Act (2004 DLRA). Supreme Court denied both
motions.
Defendant appealed both the judgment of conviction and
sentence and the orders denying his two post-judgment motions.
The Appellate Division, with two Justices dissenting, modified
the judgment in one respect, not relevant to this appeal, and
otherwise affirmed the judgment and the two orders (116 AD3d 428
[1st Dept 2014]). A dissenting Justice granted defendant
permission to appeal to us.
Defendant again argues that he should have been
resentenced pursuant to the 2004 DLRA. "It is well established
that no appeal lies from a determination made in a criminal
proceeding unless specifically provided for by statute," and
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courts "may not resort to interpretative contrivances to broaden
the scope and application of statutes" governing the availability
of an appeal (People v Pagan, 12 NY3d 386, 370 [2012]). In
People v Bautista (7 NY3d 838 [2006]), we held that no statutory
provision authorizes a defendant to appeal from an Appellate
Division order affirming the denial of the defendant's
resentencing application pursuant to the 2005 Drug Law Reform Act
(id. at 838-839). The 2004 DLRA includes similar language
relating to appeals; accordingly, no appeal lies from an order of
the Appellate Division affirming the denial of a resentencing
application under the 2004 DLRA (see People v Sevencan, 12 NY3d
388, 389 [2009] [dismissal of criminal leave application
authorized for publication by the Court]). Faced with this
barrier to our review, defendant contends that the Appellate
Division's consolidation of the order denying resentencing with
other, appealable orders, transformed the nonappealable order
into one that we may consider. We disagree. The Appellate
Division's authority to consolidate appeals stems from its
inherent authority to administer and manage its proceedings. The
Appellate Division's use of this inherent authority does not
expand or modify the scope of our jurisdiction, which is
established by statute.
Defendant also again argues that Supreme Court's
instructions about the People's burden of proof were confusing
and misleading, and that his attorney was ineffective because he
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failed to object. In light of the precedent existing at the time
of trial, however, the error in the court's jury instructions, if
any, was not so obvious that any reasonable lawyer would have
objected. Defendant's remaining claims, raised for the first
time on appeal to us, are unpreserved for our review.
* * * * * * * * * * * * * * * * *
On defendant's appeal from so much of the order of the Appellate
Division, First Department, as affirmed the order of Supreme
Court, New York County, denying defendant's motion for
resentencing, appeal dismissed; order otherwise appealed from
affirmed, in a memorandum. Chief Judge Lippman and Judges Read,
Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.
Decided June 25, 2015
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