| People v Allen |
| 2012 NY Slip Op 00671 [92 AD3d 980] |
| February 2, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v William C.Allen, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the County Court of Broome County (Smith, J.), enteredJanuary 11, 2011, which denied defendant's motion for resentencing pursuant to CPL 440.46.
In 1999, defendant was convicted upon his plea of guilty of the crime of criminal sale of acontrolled substance in the third degree and sentenced to a prison term of 4½ to 9 years.While on parole for that conviction, defendant was arrested, convicted of criminal possession ofa weapon in the second degree, criminal possession of a weapon in the third degree and falsepersonation and returned to prison. In September 2010, defendant moved for resentencing underthe Drug Law Reform Act of 2009 (see L 2009, ch 56, as codified in CPL 440.46).County Court denied the application, finding that defendant was ineligible for resentencingbecause of his status as a parole violator and his commission of an exclusionary offensesubsequent to the drug offense for which he sought resentencing. Defendant now appeals.
As the People concede, reversal is required. Although relevant factors to be taken intoconsideration in determining whether to ultimately grant defendant's application for resentencing,neither defendant's status as a parole violator nor his commission of a violent felony offensesubsequent to the drug offense at issue renders him ineligible for resentencing as a matter of law(see People v Paulin, 17 NY3d238, 244 [2011]; People vChaires, 89 AD3d 1282, 1282 [2011]; [*2]People v Devivo, 87 AD3d 794,795-796 [2011]). Accordingly, the order is reversed and this matter is remitted to County Courtfor further proceedings.
Lahtinen, J.P., Spain, Stein and Garry, JJ., concur. Ordered that the order is reversed, on thelaw, and matter remitted to the County Court of Broome County for further proceedings notinconsistent with this Court's decision.