| People v Concepcion |
| 2011 NY Slip Op 05085 [85 AD3d 811] |
| June 7, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Clarence Concepcion, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Ayelet Sela of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Grosso, J.),dated November 30, 2009, which, after a hearing, denied his motion for resentencing pursuant toCPL 440.46 on his conviction of criminal sale of a controlled substance in the third degree,which sentence was originally imposed, upon his plea of guilty, on July 9, 2004.
Ordered that the order is reversed, on the law and as a matter of discretion in the interest ofjustice, the motion is granted, and the matter is remitted to the Supreme Court, Queens County,for further proceedings in accordance with CPL 440.46.
Contrary to the People's contention, the defendant's appeal from the denial of his motion forresentencing was not rendered academic by the defendant's release to parole while this appealwas pending (see People v Overton, — AD3d —, 2011 NY Slip Op 04278[2d Dept 2011]).
Upon our consideration of the merits of the appeal, we conclude that the Supreme Courterred in denying the defendant's motion for resentencing. Pursuant to statute, such a motion"should be granted unless 'substantial justice dictates that [it] should be denied' " (People v Braithwaite, 62 AD3d1019, 1021 [2009], quoting L 2004, ch 738, § 23; see CPL 440.46 [3]; People v Beasley, 47 AD3d 639,641 [2008]). Thus, a presumption exists in favor of granting a motion for resentencing (seePeople v Beasley, 47 AD3d at 641). Here, given that the defendant's offense involved a smallquantity of drugs, that his criminal and disciplinary history was not extensive, and consideringthe defendant's willingness to participate in treatment and vocational and educationalprogramming while incarcerated, substantial justice did not dictate denial of the defendant'sresentencing motion (see CPL 440.46; People v Beasley, 47 AD3d at 641; cf. People v Perez, 57 AD3d 921[2008]; People v Curry, 52 AD3d732 [2008]). Accordingly, we reverse the order and remit the matter to the Supreme Court,Queens County, for further proceedings in accordance with CPL 440.46. Angiolillo, J.P., Florio,Lott and Austin, JJ., concur.