| People v Brown |
| 2011 NY Slip Op 05294 [85 AD3d 940] |
| June 14, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v CecilBrown, Appellant. |
—[*1]
Appeal by the defendant from an order of the Supreme Court, Queens County (Erlbaum, J.),dated March 12, 2010, which, without 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 by the same court (Rotker, J.), after a jury trial, on June10, 1993.
Ordered that the order is reversed, on the law, and the matter is remitted to the SupremeCourt, Queens County, for further proceedings and a new determination of the motion.
Contrary to the People's contention, the defendant's release to parole did not render theinstant appeal academic (see People v Overton, — AD3d —, 2011 NY SlipOp 04278 [2d Dept 2011]; but seePeople v Orta, 73 AD3d 452 [2010]). On the merits, we find that the Supreme Courterred in determining that the defendant was ineligible for resentencing pursuant to the Drug LawReform Act of 2009, codified in CPL 440.46.
"In order to be eligible for resentencing under CPL 440.46, a defendant must be in thecustody of the department of correctional services, must have been convicted of a class B felonydrug offense under article 220 of the Penal Law that was committed prior to January 13, 2005,and must be serving an indeterminate sentence with a maximum of more than three years" (People v Williams, 82 AD3d 796,796 [2011]; see CPL 440.46 [1]). However, the resentencing provisions of CPL 440.46do not apply "to any person who is serving a sentence on a conviction for or has a predicatefelony conviction for an exclusion offense" (CPL 440.46 [5]). CPL 440.46 (5) (a) defines an"exclusion offense" as "a crime for which the person was previously convicted within thepreceding ten years, excluding any time during which the offender was incarcerated for anyreason between the time of commission of the previous felony and the time of commission of thepresent felony, which was: (i) a violent felony offense as defined in section 70.02 of the penallaw; or (ii) any other offense for which a merit time allowance is not available pursuant tosubparagraph (ii) of paragraph (d) of subdivision one of section eight hundred three of thecorrection law."
The 10-year "look-back" period of CPL 440.46 (5) (a) is properly measured from the date[*2]of the defendant's resentencing motion, rather than from thedate that he committed the present drug felony (see People v Lashley, 83 AD3d 868 [2011]; People v Williams, 82 AD3d 796[2011]; People v Hill, 82 AD3d77 [2011]; People v Sosa, 81AD3d 464 [2011], lv granted 16 NY3d 863 [2011]).
Here, at the time the defendant filed his motion for resentencing, he was in the custody of theNew York State Department of Correctional Services, was convicted of a class B felony drugoffense under article 220 of the Penal Law that was committed prior to January 13, 2005, andwas serving an indeterminate sentence with a maximum of more than three years (seeCPL 440.46 [1]; People v Overton, — AD3d —, 2011 NY Slip Op 04278,*5 [2011]). Furthermore, when measured from the date of the defendant's October 2009 motionfor resentencing, his March 1984 conviction of manslaughter in the first degree, a class B violentfelony, and his July 1995 conviction of manslaughter in the second degree, an offense for whicha merit time allowance is not available pursuant to Correction Law § 803 (1) (d) (ii), wereoutside the 10 year look-back period and, thus, do not disqualify him from eligibility forresentencing pursuant to CPL 440.46 (see People v Lashley, 83 AD3d 868 [2011]).
The People's remaining contentions are without merit.
Accordingly, the defendant is eligible for resentencing pursuant to CPL 440.46, and thematter must be remitted the Supreme Court, Queens County, for further proceedings and a newdetermination of the motion. Dillon, J.P., Leventhal, Hall and Lott, JJ., concur.