| People v Milton |
| 2011 NY Slip Op 05981 [86 AD3d 478] |
| July 21, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Christopher Milton, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Brian J. Reimels of counsel), forrespondent.
Order, Supreme Court, Bronx County (John P. Collins, J.), entered on or about June 28,2010, denying defendant's CPL 440.46 motion for resentencing, unanimously reversed, as amatter of discretion in the interest of justice, the motion granted, the order replaced by an orderspecifying and informing defendant of a proposed sentence of five years plus three years'postrelease supervision, and the matter remanded for further proceedings.
By judgment, same court and Justice, rendered December 13, 2004, defendant was convicted,on his guilty plea, of two counts of criminal sale of a controlled substance in the third degree, aclass B felony (Penal Law § 220.39). In accordance with the plea agreement, defendantwas placed under the supervision of Treatment Accountability for Safe Communities anddirected to complete a drug treatment program. Despite being afforded several opportunities,defendant failed to comply with the terms of the program and on September 21, 2006 wassentenced as a second felony offender, same court and Justice, to concurrent terms of 4½ to9 years.
Defendant brought this motion seeking to be resentenced under the Drug Law Reform Act(DLRA) of 2009 (L 2009, ch 56). While finding defendant eligible for resentencing, SupremeCourt, in its discretion, denied the motion on the ground that defendant had failed to availhimself of the alternative of drug treatment.
Although defendant failed to complete the drug treatment program and has not been a modelprisoner, we note that his family has promised to provide him with substantial assistance uponrelease, including employment, help in finding housing and emotional support. Resentencingpromotes the purpose of the 2009 DLRA to ameliorate harsh sentences, and the requisite periodof postrelease supervision affords protection to the community (see People v Goss, 286AD2d 180, 183 [2001]). We therefore exercise our discretion to grant the motion and to specifyand inform defendant of an appropriate proposed sentence, and we remit for further proceedings(CPL 440.46 [3]; L 2004, ch 738, § 23). Concur—Tom, J.P., Mazzarelli, Acosta,DeGrasse and RomÁn, JJ.