People v Johnson

2011 NY Slip Op 02901 [83 AD3d 734]

April 5, 2011

Appellate Division, Second Department

As corrected through Wednesday, June 8, 2011

The People of the State of New York,Respondent, v Waturi Johnson, Appellant.

—[*1]Lynn W.L. Fahey, New York, N.Y. (Andrew E. Abraham of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and John F. McGoldrick of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Queens County (Modica, J.),dated June 25, 2010, which, without a hearing, denied his motion to be resentenced pursuant toCPL 440.46 on his conviction of criminal sale of a controlled substance in the third degree,which sentence was originally imposed, after a nonjury trial, on March 4, 1998.

Ordered that the order is reversed, on the law, and the matter is remitted to the SupremeCourt, Queens County, for further proceedings on the defendant's motion.

For the reasons stated in People vPhillips (82 AD3d 1011 [2d Dept 2011]), the defendant's status as a reincarceratedparole violator did not render him ineligible to apply for resentencing pursuant to CPL 440.46.Accordingly, we remit the matter to the Supreme Court, Queens County, for further proceedingson the defendant's motion. Prudenti, P.J., Dillon, Balkin and Sgroi, JJ., concur.