| People v Gatewood |
| 2011 NY Slip Op 06312 [87 AD3d 825] |
| August 19, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael J.Gatewood, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Romolo Canzano of counsel), forrespondent.
Appeal from an order of the Cayuga County Court (Thomas G. Leone, J.), entered May 6,2010 pursuant to the 2009 Drug Law Reform Act. The order denied defendant's application to beresentenced upon defendant's 1998 conviction of criminal sale of a controlled substance in thethird degree.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order denying his application for resentencingpursuant to CPL 440.46, the 2009 Drug Law Reform Act (DLRA-3). Although defendant iseligible to apply for resentencing under DLRA-3 despite the fact that he had been released fromincarceration and was thereafter reincarcerated for violating the conditions of his parole (see People v Paulin, 17 NY3d 238[2011]; People v Wallace, 87 AD3d 824 [2011]), we nevertheless conclude that CountyCourt did not abuse its discretion in determining that substantial justice required denial of hisapplication (see People v Pipkin, 77AD3d 770 [2010], lv denied 15 NY3d 955 [2010]). We reject defendant's furthercontention that the court erred in receiving the limited testimony of the District Attorneyregarding his personal knowledge of defendant's criminal history (see generally CPL440.46 [3]; L 2004, ch 738, § 23). Present—Smith, J.P., Centra, Fahey, Gorski andMartoche, JJ.