| People v Hernandez |
| 2007 NY Slip Op 10302 [46 AD3d 1425] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v NestorHernandez, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Audra Albright of counsel), forrespondent.
Appeal from an order of the Onondaga County Court (Anthony F. Aloi, J.), entered January4, 2006 pursuant to the 2005 Drug Law Reform Act. The order denied defendant's application forresentencing upon defendant's 1999 conviction of criminal possession of a controlled substancein the second degree.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed.
Memorandum: Defendant appeals from an order pursuant to the 2005 Drug Law Reform Act([DLRA-2] L 2005, ch 643, § 1) denying his application for resentencing upon his 1999conviction of criminal possession of a controlled substance in the second degree (Penal Law§ 220.18 [former (1)]). County Court properly denied the application of defendant becausehe was eligible for parole in June 2006, well within three years of the time of his application inOctober 2005 (see L 2005, ch 643, § 1; People v Smith , 45 AD3d 1478 [2007]). "Moreover, we concludethat DLRA-2 was never intended to apply to class A-II felony offenders 'who have served theirterm of imprisonment, have been released from prison to parole supervision, and whose parole isthen violated, with a resulting period of incarceration' " (Smith, 45 AD3d at 1480). Here,defendant had served his minimum sentence, violated parole on two occasions, and was againincarcerated after both violations (see id.; People v Bagby, 11 Misc 3d 882, 887 [2006]).Present—Scudder, P.J., Smith, Centra, Lunn and Peradotto, JJ.