| People v Jenkins |
| 2011 NY Slip Op 06086 [86 AD3d 522] |
| July 28, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Dayshawn Jenkins, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Thomas R. Villecco of counsel), forrespondent.
Order, Supreme Court, Bronx County (Seth L. Marvin, J.), entered on or about September28, 2010, which granted defendant's motion for reargument, and adhered to its originaldetermination denying defendant's CPL 440.46 motion for resentencing, unanimously reversed,as a matter of discretion in the interest of justice, and the matter remanded for furtherproceedings. Appeal from order, same court and Justice, entered on or about August 12, 2010,which denied the motion for resentencing, unanimously dismissed, without costs, as subsumed inthe appeal from the September 28, 2010 order.
When a defendant moves for resentencing under the Drug Law Reform Act, the defendant isentitled to be brought before the court and given an opportunity to be heard (People v Figueroa, 21 AD3d 337,339 [2005], lv denied 6 NY3d 753 [2005]). In this case defendant was never before thecourt on his resentencing motion. Thus the determination denying resentencing must be vacatedand the matter remanded for a hearing on defendant's CPL 440.46 motion. Concur—Saxe,J.P., Sweeny, Catterson, Freedman and Manzanet-Daniels, JJ.