| People v Bustamante |
| 2009 NY Slip Op 04130 [62 AD3d 1209] |
| May 28, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JoaquinBustamante, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Malone Jr., J. Appeal from an order of the County Court of Columbia County (Nichols, J.),entered December 13, 2007, which denied defendant's motion for resentencing pursuant to theDrug Law Reform Act of 2005.
In 1991, defendant was convicted of criminal possession of a controlled substance in thesecond degree—a class A-II nonviolent felony—and was sentenced to a prison termof four years to life. He was released to parole supervision in 1995 but thereafterincarcerated—most recently in 2007—on three separate occasions for violations ofparole. On this appeal, defendant asserts that County Court improperly denied his application forresentencing pursuant to the Drug Law Reform Act of 2005 (L 2005, ch 643, § 1[hereinafter 2005 DLRA]) without a hearing.
"[O]nce a defendant has been released to parole supervision for a class A-II drug felonyconviction, he or she no longer qualifies for 2005 DLRA relief for that particular conviction" (People v Mills, 11 NY3d 527, 537[2008]; People v McCloud, 38AD3d 1056, 1057 [2007], lv dismissed 8 NY3d 947 [2007]). Inasmuch as defendantwas clearly ineligible, as a matter of law, for resentencing pursuant to the 2005 DLRA, CountyCourt's denial of his application without a hearing was proper (see People v Salvatierra, 51 AD3d1218, 1219 [2008], lv dismissed 10 NY3d 964 [2008]). Defendant's remainingarguments have been reviewed and are without merit.[*2]
Mercure, J.P., Spain, Kavanagh and McCarthy, JJ.,concur. Ordered that the order is affirmed.