| People v Wallace |
| 2011 NY Slip Op 06310 [87 AD3d 824] |
| August 19, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RafaelWallace, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from an order of the Supreme Court, Monroe County (David D. Egan, J.), enteredMay 20, 2010 pursuant to the 2009 Drug Law Reform Act. The order denied defendant'sapplication to be resentenced upon defendant's 1993 conviction of criminal sale of a controlledsubstance in the third degree, criminal possession of a controlled substance in the third degreeand criminal possession of a controlled substance in the seventh degree.
It is hereby ordered that the order so appealed from is unanimously reversed on the law andthe matter is remitted to Supreme Court, Monroe County, for further proceedings in accordancewith the following Memorandum: On April 2, 1993 defendant was convicted upon a jury verdictof, inter alia, criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]) and criminal sale of a controlled substance in the third degree (§220.39 [1]). He was sentenced as a second felony offender to an indeterminate term ofimprisonment of 10 to 20 years. Defendant was thereafter released on parole, his parole wasrevoked based upon a violation and he was reincarcerated. On March 19, 2010, while he wasincarcerated, defendant applied for resentencing pursuant to CPL 440.46.
Supreme Court erred in denying defendant's application on the ground that defendant wasineligible to apply for resentencing because he was incarcerated at that time based on a paroleviolation. "[P]risoners who have been paroled, and then reincarcerated for violating their parole,are not for that reason barred from seeking relief under [CPL 440.46]" (People v Paulin, 17 NY3d 238,242 [2011]). The court further erred in denying the application on the ground that defendant'sprior conviction of burglary in the second degree (Penal Law § 140.25), a class C violentfelony offense committed on August 18, 1983, rendered him ineligible for resentencing. Contraryto the conclusion of the court, that offense does not fall within the definition of an "exclusionoffense" (CPL 440.46 [5]), e.g., a violent felony offense for which defendant "was previouslyconvicted within the preceding ten years" (CPL 440.46 [5] [a]). "The phrase 'within the precedingten years' in CPL 440.46 (5) does not refer to the period between the previous felon[y] and thepresent felon[ies] but, rather, it refers to the 10-year period preceding the date of filing of theapplication for resentencing" (People vReeb, 82 AD3d 1620, 1621 [2011]; see People v Hill, 82 AD3d 77, 79-80 [2011]).[*2]
We therefore reverse the order and remit the matter toSupreme Court for further proceedings on defendant's application for resentencing pursuant toCPL 440.46. Present—Scudder, P.J., Smith, Peradotto, Lindley and Green, JJ.