| People v Brown |
| 2011 NY Slip Op 04485 [84 AD3d 1262] |
| May 24, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v AndrewBrown, Respondent. |
—[*1] Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for respondent.
Appeal by the People from a resentence of the Supreme Court, Queens County (Latella, J.),imposed April 12, 2010, pursuant to CPL 440.46, upon the defendant's conviction of criminalsale of a controlled substance in the third degree and criminal sale of a controlled substance in ornear school grounds, upon a jury verdict.
Ordered that the resentence is affirmed.
Contrary to the People's contention, the defendant's status as a reincarcerated parole violatordid not render him ineligible to apply for resentencing pursuant to CPL 440.46 (see People vJohnson, 83 AD3d 734 [2d Dept 2011]; People v Phillips, 82 AD3d 1011 [2011],lv granted 16 NY3d 834 [2011]). "While a person's status as a parole violator may berelevant in determining whether 'substantial justice dictates that the application should be denied'on the merits (L 2004, ch 738, § 23; see CPL 440.46 [3]), nothing in CPL 440.46supports a conclusion that such status renders a person ineligible to apply for resentencing in thefirst instance" (People v Phillips, 82 AD3d at 1012). Dillon, J.P., Balkin, Eng andRoman, JJ., concur.