| People v Chaires |
| 2011 NY Slip Op 08238 [89 AD3d 1282] |
| November 17, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert Chaires,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Kavanagh, J. Appeal from an order of the County Court of Schenectady County (Hoye, J.),entered May 20, 2011, which denied defendant's motion for resentencing pursuant to CPL 440.46.
Defendant was convicted upon his plea of guilty of the crime of criminal sale of a controlledsubstance in the third degree and was sentenced to a prison term of 4 to 12 years. After his release onparole, he was again arrested and pleaded guilty to the crime of attempted criminal sale of a controlledsubstance in the third degree, and was returned to prison. Defendant subsequently moved to beresentenced pursuant to CPL 440.46, but was released on parole prior to a determination being madeon his application. County Court dismissed his application on the basis that defendant was ineligible toapply for resentencing because of his status as a parole violator and the fact that he was no longerincarcerated. Defendant now appeals.
As the People concede, reversal is required. Defendant's status as a parole violator does notpreclude County Court from considering his application (see People v Paulin, 17 NY3d 238, 244 [2011]), although it may betaken into account by the court when determining whether or not to grant the application (seeid.; People v Devivo, 87 AD3d794, 796 [2011]). Further, insofar as defendant was in custody when he applied for resentencing,the fact that he has subsequently been released does not render his application moot (see People v Santiago, 17 NY3d 246,248-[*2]249 [2011]). Therefore, the order must be reversed and thematter remitted to County Court for further proceedings.
Mercure, J.P., Peters, Malone Jr. and Stein, 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.