| People v Reeb |
| 2011 NY Slip Op 02181 [82 AD3d 1620] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v GaryReeb, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from an order of the Erie County Court (Michael F. Pietruszka, J.), entered April 8,2010 pursuant to the 2009 Drug Law Reform Act. The order denied defendant's application to beresentenced upon defendant's 2004 conviction of criminal sale of a controlled substance in thethird degree.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: On October 13, 2004 defendant was convicted upon his plea of guilty ofcriminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) andwas sentenced as a second felony offender to an indeterminate term of incarceration of 6 to 12years. That crime was committed on September 20, 2003. On January 21, 2010, defendantapplied for resentencing pursuant to CPL 440.46. County Court denied the application on theground that defendant was ineligible for resentencing because he had a predicate conviction foran "exclusion offense," i.e., "a crime for which [defendant] was previously convicted within thepreceding ten years, excluding any time during which [he] was incarcerated for any reasonbetween the time of commission of the previous felony and the time of commission of thepresent felony, which was . . . a violent felony offense as defined in section 70.02 ofthe penal law" (CPL 440.46 [5] [a] [i]). On October 27, 1995, defendant was convicted of twoclass D violent felony offenses, committed on August 18, 1995 and September 5, 1994,respectively.
The court erred in denying defendant's application on the ground that the two violent felonyoffenses fall within the definition of "exclusion offense" because they were committed within the10-year period preceding the instant controlled substance offense for which defendant seeksresentencing. The phrase "within the preceding ten years" in CPL 440.46 (5) does not refer to theperiod between the previous felonies and the present felony but, rather, it refers to the 10-yearperiod preceding the date of filing of the application for resentencing (see People v Hill,82 AD3d 77 [2011]; People v Sosa,81 AD3d 464 [2011]). The record, however, supports the People's contention that, takinginto account the time during which defendant was incarcerated between the previous felonies andthe present felony, defendant's application was premature (see CPL 440.46 [5] [a]), andthus the application was properly denied. Present—Scudder, P.J., Fahey, Carni, Green andGorski, JJ.