Opinion
2011-11-22
The PEOPLE, etc., respondent, v. William MARTIN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Ellen Fried of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Terrence F. Heller of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Ellen Fried of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Terrence F. Heller of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.), dated July 30, 2010, which denied his motion to be resentenced pursuant to CPL 440.46 on his conviction of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third *558 degree (two counts), which sentence was originally imposed, upon a jury verdict, on November 6, 1995.
ORDERED that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 440.46.
The Supreme Court denied the defendant's motion for resentencing solely upon the ground that his status as a reincarcerated parole violator made him ineligible for relief under the 2009 Drug Law Reform Act, which is codified by CPL 440.46. However, “prisoners who have been paroled, and then reincarcerated for violating their parole, are not for that reason barred from seeking relief under the statute” ( People v. Paulin, 17 N.Y.3d 238, 242, 929 N.Y.S.2d 36, 952 N.E.2d 1028; see People v. Vidal, 87 A.D.3d 1085, 929 N.Y.S.2d 752; People v. Santiago, 87 A.D.3d 1077, 929 N.Y.S.2d 761; People v. Howard, 85 A.D.3d 1202, 1202–1203, 926 N.Y.S.2d 296; People v. Phillips, 82 A.D.3d 1011, 1012, 919 N.Y.S.2d 88). Accordingly, as the People correctly concede, the order appealed from must be reversed, and the matter remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 440.46.