| People v Scarborough |
| 2011 NY Slip Op 07484 [88 AD3d 585] |
| October 25, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Terrence Scarborough, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Kayonia L. Whetstone of counsel), forrespondent.
Order, Supreme Court, Bronx County (John S. Moore, J.), entered March 15, 2010, whichdenied defendant's CPL 440.46 motion for resentencing, unanimously reversed, as a matter ofdiscretion in the interest of justice, and the matter remanded for further proceedings on themotion.
The court denied the motion on the ground of ineligibility. The court also determined, in thealternative, that substantial justice dictated denial of the motion.
Defendant is eligible for consideration for resentencing even though he had been releasedfrom custody on his drug conviction but reincarcerated for a parole violation (see People v Paulin, 17 NY3d 238[2011]). Under the circumstances of this case, defendant is entitled to further proceedings on theissue of substantial justice.
An applicant for resentencing under the Drug Law Reform Act is entitled to be "broughtbefore the court and given an opportunity to be heard" (People v Soler, 45 AD3d 499 [2007], lv dismissed 9 NY3d1009 [2007]). As the People concede, defendant was not produced in court on the date the courthanded down its decision. Nor does the record show that he was given an opportunity to be heardat the court appearances before the decision was issued (People v Jenkins, 86 AD3d 522, 523 [2011]). Furthermore, thereappears to be a disputed issue as to the extent of defendant's prison disciplinary record.
Defendant's request for assignment of the case to a different justice is denied.Concur—Catterson, J.P., Richter, Manzanet-Daniels and RomÁn, JJ.