| People v Hernandez |
| 2013 NY Slip Op 05225 [108 AD3d 640] |
| July 10, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Appellant, v Rene Hernandez, Respondent. |
—[*1] Lynn W. L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), forrespondent.
Appeal by the People from a resentence of the Supreme Court, Queens County(Camacho, J.), imposed May 16, 2012, pursuant to CPL 440.46, upon the defendant'sconviction of criminal sale of a controlled substance in the third degree, upon a juryverdict.
Ordered that the appeal is dismissed as academic.
The People contend that the Supreme Court erred in granting the defendant's motionfor resentencing pursuant to CPL 440.46 because he was on parole and not "in thecustody of the department of corrections and community supervision" within themeaning of the statute at the time he made his motion. The record indicates that themaximum expiration date of the defendant's original sentence has expired. Accordingly,the appeal has been rendered academic (see People v Paulin, 17 NY3d 238 [2011]; cf. People v Gagliardo, 85AD3d 943 [2011]; People vElmendorf, 83 AD3d 959 [2011]; People v Garner, 83 AD3d 862 [2011]; People vRodriguez, 269 AD2d 613 [2000]; People v Hernandez, 166 AD2d 609, 610[1990]). Dillon, J.P., Chambers, Roman and Cohen, JJ., concur.