| People v Rodriguez |
| 2009 NY Slip Op 09717 [68 AD3d 676] |
| December 29, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v James Rodriguez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Malancha Chanda of counsel), forrespondent.
Order, Supreme Court, New York County (Robert M. Stolz, J.), entered on or aboutFebruary 8, 2008, which denied defendant's motion to be resentenced, unanimously affirmed.
Defendant is not eligible to be resentenced under the 2004 Drug Law Reform Act (L 2004,ch 738, § 23). That act "was not intended to apply to those offenders who have servedtheir term of imprisonment, have been released from prison to parole supervision, and whoseparole is then violated, with a resulting period of incarceration" (People v Bagby, 11 Misc 3d 882,887 [2006]; see also People v Mills,11 NY3d 527, 537 [2008]). If defendant had not violated his parole conditions, he would nothave been in the custody of the Department of Correctional Services when he moved to beresentenced, and he would therefore have been ineligible for resentencing (see Mills, 11NY3d at 537). "Surely the Legislature did not intend fresh crimes to trigger resentencingopportunities" (id.). Concur—Andrias, J.P., Friedman, Acosta, DeGrasse andRomÁn, JJ.