| People v Orta |
| 2010 NY Slip Op 03836 [73 AD3d 452] |
| May 6, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Alexis Orta, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Andrew S. Holland of counsel), for respondent. Judith Whiting, New York (Lily Goetz of counsel), for amicus curiae.
Appeal from order, Supreme Court, Bronx County (John P. Collins, J.), entered December 2,2009, which denied, on the ground of ineligibility, defendant's CPL 440.46 motion to beresentenced, unanimously dismissed as moot.
Defendant contends that the motion court erred in concluding that, as a reincarcerated paroleviolator, defendant was ineligible for resentencing to a determinate sentence. Were we to acceptthat argument, the proper corrective action would be a remand to the motion court for adiscretionary determination of the motion. However, during the pendency of this appeal,defendant has again been released on parole. Since he is not in custody, he is not presentlyeligible for resentencing (CPL 440.46 [1]). Therefore, this appeal is moot, and we do not findapplicable the exception to the mootness doctrine set forth in Matter of Hearst Corp. vClyne (50 NY2d 707, 714-715 [1980]). Concur—Andrias, J.P., Saxe, Catterson,Freedman and Abdus-Salaam, JJ.
Motion seeking leave to file amicus curiae[*2] brief granted.