| People v Then |
| 2008 NY Slip Op 00035 [47 AD3d 404] |
| January 3, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Appellant, v JoseThen, Respondent. |
—[*1] Robert S. Dean, Center for Appellate Litigation, New York City (Claudia S. Trupp ofcounsel), for respondent.
Judgment of resentence, Supreme Court, New York County (John Cataldo, J.), renderedApril 24, 2006, resentencing defendant, upon his 1999 conviction of criminal sale of a controlledsubstance in the second degree, to a term of five years, unanimously reversed, on the law, and theoriginal sentence of five years to life reinstated.
In 1999 defendant was convicted of criminal sale of a controlled substance in the seconddegree and sentenced to a term of five years to life in prison. On October 8, 2002, he wasreleased on parole. While on parole, defendant was arrested for a new and unrelated drugtransaction, as a result of which he was again convicted of second-degree criminal possession ofa controlled substance. On July 29, 2003, he was sentenced to a term of six years to life. OnAugust 8, 2003, defendant's parole on the first conviction was revoked, and he was sentenced to aterm of five months and 26 days for the parole violation.
In late 2005, defendant moved for resentencing pursuant to the 2005 Drug Law Reform Act(DLRA) (L 2005, ch 643, § 1) on both convictions. The court granted the application, andsubsequently resentenced defendant on both his 1999 and 2003 convictions. The People claimthe court erroneously resentenced defendant under the 1999 conviction.
We agree. Defendant's release to parole in 2002 precluded resentencing on his 1999conviction (see People v McCloud,38 AD3d 1056 [2007], lv dismissed 8 NY3d 947 [2007]). Under the 2005 DLRA, adefendant applying for resentencing must be more than three years away from parole eligibility(People v Bautista, 26 AD3d230 [2006], appeal dismissed 7 NY3d [*2]838[2006]). When defendant applied for resentencing in 2005, he did not qualify, because he hadalready been paroled. Concur—Andrias, J.P., Friedman, Williams, Buckley and Sweeny,JJ.