Opinion
No. KA 07-00727.
February 1, 2008.
Appeal from an order of the Onondaga County Court (Anthony F. Aloi, J.), entered January 25, 2007. The order granted the motion of the People pursuant to CPL 440.40 (1) to vacate a new sentence pursuant to the 2005 Drug Law Reform Act.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE OF COUNSEL), FOR RESPONDENT
Before: Scudder, P.J., Hurlbutt, Lunn, Green and Gorski, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order that vacated a new sentence pursuant to the 2005 Drug Law Reform Act (L 2005, ch 643, § 1) granted upon his application to be resentenced and that reimposed his original sentence. County Court properly vacated the new sentence and reimposed the original sentence "because defendant was eligible for parole within three years of the time of his application and thus was not eligible to be resentenced" ( People v Dunham, 46 AD3d 1416, 1417; see L 2005, ch 643, § 1; People v Smith, 45 AD3d 1478, 1479). At the time of his application in May 2006, defendant had been denied parole release and was scheduled to appear before the parole board again in April 2008 ( see Smith, 45 AD3d at 1479-1480).
[ See 14 Misc 3d 1220(A), 2007 NY Slip Op 50100(U).]