55 N.Y.2d 778 (1981)
The Court of Appeals held that an appeal from an order denying resentencing under Penal Law § 60.09 requires permission from a judge of the intermediate appellate court, and failure to obtain such permission warrants dismissal of the appeal.
Summary
Defendant Stephens, convicted under the Rockefeller Drug Laws, sought resentencing under Penal Law § 60.09. After his motion was denied without counsel or his presence, he appealed to the Appellate Division, which ruled on the merits without granting permission for the appeal. The Court of Appeals dismissed Stephens’s appeal, finding that failure to obtain leave to appeal from the Appellate Division as required by CPL 450.15 and 460.15 was fatal. The dissent argued that the Appellate Division’s determination on the merits was functionally equivalent to granting permission, and that due process concerns warranted review.
Facts
Stephens was originally sentenced under the severe Rockefeller Drug Laws.
He later moved for resentencing pursuant to Penal Law § 60.09, arguing he was a model prisoner who had addressed his drug issues.
Stephens requested counsel for the resentencing proceedings, but counsel was never assigned.
The District Attorney initially indicated no opposition to Stephens’s resentencing.
Stephens’s motion was denied without his presence or representation by counsel, and without any specific findings by the court.
Procedural History
Stephens filed a motion under CPL 440.20 to set aside his sentence, which was denied by the County Court.
He appealed to the Appellate Division, Second Department, which considered the appeal on its merits without granting permission for the appeal as required by statute.
The Court of Appeals dismissed the appeal, holding that the Appellate Division lacked jurisdiction because Stephens had not obtained leave to appeal.
Issue(s)
Whether the Appellate Division’s consideration of the merits of an appeal from the denial of a resentencing motion under Penal Law § 60.09, without granting permission to appeal as required by CPL 450.15 and 460.15, is a procedural defect that deprives the appellate court of subject matter jurisdiction.
Holding
Yes, because CPL 450.15 and 460.15 require permission for an appeal from the denial of a CPL 440.20 motion; failure to obtain that permission means the Appellate Division lacked jurisdiction to hear the appeal.
Court’s Reasoning
The court emphasized the statutory requirements of CPL 450.15 and 460.15, which mandate that permission be granted by a judge of the intermediate appellate court before an appeal can be taken from an order denying a motion to set aside a sentence under CPL 440.20. The court found that the appellant’s failure to obtain such permission was a fatal defect, depriving the Appellate Division of the power to hear the appeal. The court distinguished this case from situations where the Appellate Division lacked the power to consider an appeal by permission or otherwise. The majority opinion relied on precedent established in People v. De Jesus, 54 N.Y.2d 447, to support its holding. The dissenting judge argued that the Appellate Division’s decision to consider the merits of the case was functionally equivalent to granting permission for the appeal. The dissent also highlighted the importance of ensuring due process in resentencing proceedings, particularly when significant liberty interests are at stake. The dissent suggested that the court should fill the apparent gap in the statutory scheme to harmonize it with legislative intent, especially when constitutional matters are concerned. The dissent further pointed out that Stephens was denied counsel and the right to be present during the resentencing proceedings, which raised concerns about fairness and due process: “Believing these contentions are not without merit, it follows that I would reverse and remand the case to the County Court for proceedings on appellant’s motion under *782 section 60.09 of the Penal Law in accordance with constitutional notions of due process.”