| People v Chatham |
| 2011 NY Slip Op 07308 [88 AD3d 1063] |
| October 20, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Eric Chatham,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Motion for reargument. Upon the papers filed in support of the motion, and no papers havingbeen filed in opposition thereto, and in light of defendant's pending application to the Court ofAppeals for permission to appeal to the Court of Appeals and the fact that, subsequent to thisCourt's decision, the Court of Appeals, in People v Paulin (17 NY3d 238 [2011]), reversed the FirstDepartment in People v Pratts (74AD3d 536 [2010]), the reasoning of which this Court had adopted in its opinion (seeDreifuss v Cohen, 177 AD2d 682, 682 [1991]; Foley v Roche, 86 AD2d 887, 887[1982], lv denied 56 NY2d 507 [1982]), it is ordered that the motion for reargument isgranted, without costs, and the opinion and order decided and entered June 2, 2011 (People v Chatham, 86 AD3d 201[2011]) is vacated and the following memorandum and order is substituted therefor:
Stein, J. Appeal from an order of the County Court of Schenectady County (Hoye, J.),entered March 30, 2010, which denied defendant's motion for resentencing pursuant to CPL440.46.
Defendant was convicted after a jury trial of criminal sale of a controlled substance in thethird degree (two counts), criminal possession of a controlled substance in the third degree (threecounts) and attempted criminal sale of a controlled substance in the third degree. County Courtsentenced defendant to an aggregate prison term of 4 to 12 years. The judgment of convictionwas affirmed on appeal (People vChatham, 55 AD3d 1045, 1046 [2008], lv denied 14 NY3d 839 [2010]).Defendant was released on parole in 2008 but, thereafter, violated the terms of his parole and wasreincarcerated. Defendant then moved for resentencing pursuant to CPL 440.46. County Courtdenied the motion without a hearing on the basis that he was not eligible for resentencing underthat statute. Defendant now appeals.
Under CPL 440.46, which codifies a portion of the Drug Law Reform Act of 2009 (L 2009,ch 56), persons "imprisoned for class B drug felonies committed while the Rockefeller DrugLaws were in force [can] apply to be resentenced under the current, less severe, sentencingregime" (People v Paulin, 17 NY3d238, 243 [2011]; see CPL 440.46 [1]). As the statute does not prohibit prisoners whohave been paroled, and then reincarcerated for violating their parole, from seeking such relief(see CPL 440.46; People v Paulin, 17 NY3d at 244), we must remit this matterfor County Court to consider defendant's application and grant resentencing, "unless substantialjustice dictates that" it be denied (L 2004, ch 738, § 23; see CPL 440.46 [3];People v Paulin, 17 NY3d at 244; People v Samuels, 80 AD3d 1077, 1078 [2011]).
Peters, J.P., Spain, Rose and Egan Jr., JJ., concur. Ordered that the order is reversed, on thelaw, and matter remitted to the County Court of Schenectady County for further proceedings notinconsistent with this Court's decision.