| People v Irvin |
| 2012 NY Slip Op 04551 [96 AD3d 1453] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Pliekou Irvin, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from an order of the Ontario County Court (William F. Kocher, J.), dated June 7,2010 pursuant to the 2009 Drug Law Reform Act. The order denied defendant's application to beresentenced upon defendant's 2002 conviction of criminal sale of a controlled substance in thethird degree.
It is hereby ordered that the order so appealed from is unanimously reversed on the law andthe matter is remitted to Ontario County Court for further proceedings in accordance with thefollowing memorandum: On defendant's appeal from an order denying his application forresentencing pursuant to the 2009 Drug Law Reform Act (see CPL 440.46), the Peoplecorrectly concede that defendant's status as a reincarcerated parole violator did not render himineligible to apply for resentencing (seePeople v Paulin, 17 NY3d 238, 242 [2011]; People v Cobb, 90 AD3d 779 [2011]; People v Wallace, 87 AD3d 824,824 [2011]). Although County Court also denied his application on the ground that substantialjustice dictated that the application be denied, we conclude that the court erred in making thatdetermination without the benefit of a hearing (cf. People v Beasley, 47 AD3d 639, 640-641 [2008]; People v Rivers, 43 AD3d 1247,1247-1248 [2007], lv dismissed 9 NY3d 993 [2007]). At the very least, the court shouldhave permitted defendant and his attorney to appear and explain " 'why resentencing waswarranted' " (People v Morales, 46AD3d 1395, 1395 [2007], lv dismissed 10 NY3d 768 [2008]).
We therefore reverse the order and remit the matter to County Court for further proceedingson defendant's application for resentencing pursuant to CPL 440.46. Present—Scudder,P.J., Centra, Peradotto, Carni and Lindley, JJ.