| People v Landy |
| 2012 NY Slip Op 03682 [95 AD3d 1448] |
| May 10, 2012 |
| Appellate Division, Third Department |
| 2—The People of the State of New York, Respondent, vMoses Landy, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Rose, J. Appeal from an order of the County Court of Schenectady County (Drago, J.),entered October 13, 2010, which denied defendant's motion for resentencing pursuant to CPL440.46.
In 1997, defendant was convicted upon his plea of guilty of the crime of criminal sale of acontrolled substance in the third degree (two counts) and was thereafter sentenced to anaggregate prison term of 8 to 16 years. In 2009, while on parole, defendant violated the terms ofhis parole and was reincarcerated. Defendant thereafter moved for resentencing pursuant to CPL440.46. County Court denied the motion on the basis that defendant was ineligible to apply forresentencing because he had violated parole. Defendant now appeals.
We reverse. Defendant's status as a reincarcerated parole violator does not render himineligible for resentencing as a matter of law (see People v Paulin, 17 NY3d 238, 244 [2011]), although it may betaken into consideration in determining whether or not to grant his application (see People v Chaires, 89 AD3d1282, 1282 [2011]; People vChatham, 88 AD3d 1063, 1064 [2011]). Accordingly, the order must be reversed andthe matter remitted to County Court for further proceedings.
Peters, P.J., Mercure, Lahtinen and Egan Jr., JJ., concur. Ordered that the order is reversed,on the law, and matter remitted to the County Court of Schenectady County for furtherproceedings not inconsistent with this Court's decision.