| People v Mills |
| 2008 NY Slip Op 00853 [48 AD3d 1108] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Donald Mills,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from an order of the Onondaga County Court (Anthony F. Aloi, J.), entered January25, 2007. The order granted the motion of the People pursuant to CPL 440.40 (1) to vacate a newsentence pursuant to the 2005 Drug Law Reform Act.
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 the2005 Drug Law Reform Act (L 2005, ch 643, § 1) granted upon his application to beresentenced and that reimposed his original sentence. County Court properly vacated the newsentence and reimposed the original sentence "because defendant was eligible for parole withinthree years of the time of his application and thus was not eligible to be resentenced" (People v Dunham, 46 AD3d 1416,1417 [2007]; see L 2005, ch 643, § 1; People v Smith, 45 AD3d 1478, 1479 [2007]). At the time of hisapplication in May 2006, defendant had been denied parole release and was scheduled to appearbefore the parole board again in April 2008 (see Smith, 45 AD3d at 1479-1480).Present—Scudder, P.J., Hurlbutt, Lunn, Green and Gorski, JJ. [See 14 Misc 3d1220(A), 2007 NY Slip Op 50100(U).]