| People v Martin |
| 2012 NY Slip Op 03109 [94 AD3d 637] |
| April 24, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Michael Martin, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Nancy D. Killian of counsel), forrespondent.
Order, Supreme Court, Bronx County (John P. Collins, J.), entered May 3, 2010, whichdenied defendant's CPL 440.46 motion for resentencing, unanimously reversed, on the law, andthe matter remanded for de novo proceedings on the motion.
Defendant was eligible for consideration for resentencing even though he had been releasedfrom custody on his underlying drug conviction but reincarcerated for a parole violation (see People v Paulin, 17 NY3d 238[2011]).
The court ruled in the alternative that substantial justice dictated that defendant's motion bedenied. However, defendant was denied his right to be "brought before the court and given anopportunity to be heard" (People vSoler, 45 AD3d 499 [2007], lv dismissed 9 NY3d 1009 [2007]). The courtissued its order by mail several weeks in advance of defendant's first scheduled appearancebefore it. Therefore, defendant had no opportunity to be heard on the issue of whether substantialjustice dictated denial of his motion (seePeople v Scarborough, 88 AD3d 585, 585 [2011]).
We have considered and rejected the People's arguments concerning preservation.Concur—Tom, J.P., Friedman, Catterson, Acosta and Freedman, JJ.