| People v Howard |
| 2011 NY Slip Op 05738 [85 AD3d 1202] |
| June 28, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DarinHoward, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Caroline R.Donhauser, and Terrence F. Heller of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.),dated August 19, 2010, 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 September 28, 2000.
Ordered that the order is reversed, on the law, and the matter is remitted to the SupremeCourt, Kings County, for further proceedings and a new determination of the defendant's motion.
The defendant appeals from an order denying his motion to be resentenced pursuant to CPL440.46. Contrary to the People's contention, the defendant's release to parole during the pendencyof this appeal does not render the appeal academic (see People v Santiago, 17NY3d 246 [2011]; People v Overton, 86AD3d 4 [2011]).
Moreover, "prisoners who have been paroled, and then reincarcerated for violating theirparole, are not for that reason barred from seeking relief under [CPL 440.46]" (People vPaulin, 17 NY3d 238, 242 [2011]). Therefore, the SupremeCourt erred in denying the defendant's motion on the ground that he was ineligible forresentencing pursuant to CPL 440.46.
The alternate ground raised by the People for affirming the denial of the defendant's motionmay not be considered on this appeal by the defendant (see CPL 470.15 [1]; People vLaFontaine, 92 NY2d 470, 474 [1998]; People v Goodfriend, 64 NY2d 695, 697[1984]; People v Fields, 151 AD2d 598, 600 [1989]).
Accordingly, we remit the matter to the Supreme Court, Kings County, for furtherproceedings and a new determination of the defendant's motion. Dillon, J.P., Covello, Chambersand Roman, JJ., concur.