| People v Straub |
| 2011 NY Slip Op 03640 [83 AD3d 1105] |
| April 26, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v CoryStraub, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Lauren E. Grasso and Andrew R.Kass of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Orange County (DeRosa, J.),dated December 9, 2009, which denied his motion to be resentenced pursuant to CPL 440.46 onhis conviction of criminal sale of a controlled substance in the third degree, which sentence wasoriginally imposed, upon his plea of guilty, on November 21, 2001.
Ordered that the order is reversed, on the law, and the matter is remitted to the County Court,Orange County, for further proceedings and a new determination of the defendant's motion.
The County Court denied the defendant's motion to be resentenced under the Drug LawReform Act of 2009 solely on the basis that his status as a reincarcerated parole violator madehim ineligible for such relief. For the reasons set forth in People v Phillips (82 AD3d1011 [2011]), the defendant's status does not preclude the County Court from considering anddetermining the merits of the defendant's motion. Accordingly, we reverse the order appealedfrom and remit the matter to the County Court, Orange County, for further proceedings and anew determination of the defendant's motion. Rivera, J.P., Angiolillo, Eng and Sgroi, JJ., concur.