PEOPLE v. FRANCO (2007)

Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on or about May 9, 2006, which denied defendant's motion to be resentenced, unanimously reversed, on the law, and the matter remanded to Supreme Court for it to exercise its discretion and determine, either on the current record or on the basis of any additional submissions the parties might make, whether substantial justice dictates that the application should be denied, and, if not, to inform defendant of the new sentence it would impose.

The motion court erred in denying, on the apparent ground of ineligibility, defendant's motion to be resentenced in accordance with the Drug Law Reform Act (L. 2004, ch. 738).   Since defendant is a person serving a sentence for an A-I drug felony, he is eligible for resentencing pursuant to the Act, and, as the People concede, he is thus entitled to a remand for further proceedings on the motion as indicated (see People v. LaFontaine, 36 A.D.3d 474, 827 N.Y.S.2d 153 [2007];  People v. Arana, 32 A.D.3d 305, 820 N.Y.S.2d 251 [2006] ).   We reject defendant's request for reassignment of the motion to a different Justice.