Opinion
No. 2010-04113.
May 24, 2011.
Appeal by the People from a resentence of the Supreme Court, Queens County (Latella, J.), imposed April 12, 2010, pursuant to CPL 440.46, upon the defendant's conviction of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, upon a jury verdict.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Rebecca Kramer of counsel), for appellant.
Lynn W. L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for respondent.
Before: Dillon, J.P., Balkin, Eng and Roman, JJ.
Ordered that the resentence is affirmed.
Contrary to the People's contention, the defendant's status as a reincarcerated parole violator did not render him ineligible to apply for resentencing pursuant to CPL 440.46 ( see People v Johnson, 83 AD3d 734 [2d Dept 2011]; People v Phillips, 82 AD3d 1011, lv granted 16 NY3d 834). "While a person's status as a parole violator may be relevant in determining whether `substantial justice dictates that the application should be denied' on the merits (L 2004, ch 738, § 23; see CPL 440.46), nothing in CPL 440.46 supports a conclusion that such status renders a person ineligible to apply for resentencing in the first instance" ( People v Phillips, 82 AD3d at 1012).