People
v.
Spivey

Supreme Court, Appellate Division, First Department, New York.Sep 8, 2011
929 N.Y.S.2d 192 (N.Y. App. Div. 2011)
929 N.Y.S.2d 19287 A.D.3d 880A.D.3d2011 N.Y. Slip Op. 6415

2011-09-8

The PEOPLE of the State of New York, Respondent,v.Carlton SPIVEY, Defendant–Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

Order, Supreme Court, New York County (Daniel P. FitzGerald, J.), entered on or about August 6, 2010, which denied, on the ground of ineligibility, defendant's CPL 440.46 motion for resentencing, unanimously reversed, on the law, and the matter remanded to Supreme Court for further proceedings.

Defendant was released on parole shortly after he filed his resentencing motion.

Defendant is eligible to be resentenced under the 2009 Drug Law Reform Act (L. 2009, ch. 56), even though he was released on parole from custody on his drug conviction, but reincarcerated for a parole violation ( see People v. Paulin, 17 N.Y.3d 238, 929 N.Y.S.2d 36, 952 N.E.2d 1028 [2011] ). Accordingly, we remand the matter to Supreme Court for further consideration of his application.

ANDRIAS, J.P., FRIEDMAN, SWEENY, RENWICK, ROMÁN, JJ., concur.