| People v Vidal |
| 2011 NY Slip Op 06576 [87 AD3d 1085] |
| September 20, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LuisVidal, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, andTerrence F. Heller of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Ferdinand, J.),dated June 29, 2010, which denied his motion to be resentenced pursuant to CPL 440.46 on hisconviction of criminal sale of a controlled substance in the third degree, which sentence wasoriginally imposed, upon a jury verdict, on February 22, 1995.
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 Supreme Court denied the defendant's motion for resentencing solely upon the groundthat his status as a reincarcerated parole violator made him ineligible for relief under the 2009Drug Law Reform Act, which is codified by CPL 440.46. However, "prisoners who have beenparoled, and then reincarcerated for violating their parole, are not for that reason barred fromseeking relief under the statute" (Peoplev Paulin, 17 NY3d 238, 242 [2011]; see People v Howard, 85 AD3d 1202 [2011]; People v Phillips, 82 AD3d 1011,1012 [2011]).
Accordingly, the order appealed from must be reversed and the matter remitted to theSupreme Court, Kings County, for further proceedings and a new determination of thedefendant's motion. Skelos, J.P., Eng, Austin and Miller, JJ., concur.