The People, etc., appellant, v. Andrew Brown, respondent. (2011)

Submitted—May 3, 2011

DECISION & ORDER

Appeal by the People from a resentence of the Supreme Court, Queens County (Latella, J.), imposed April 12, 2010, pursuant to CPL 440.46, upon the defendant's conviction of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, upon a jury verdict.

ORDERED that the resentence is affirmed.

Contrary to the People's contention, the defendant's status as a reincarcerated parole violator did not render him ineligible to apply for resentencing pursuant to CPL 440.46 (see People v. Johnson, AD3d, 2011 N.Y. Slip Op 02901 [2d Dept 2011];  People v. Phillips, 82 AD3d 1011, lv granted 16 NY3d 834).  “While a person's status as a parole violator may be relevant in determining whether ‘substantial justice dictates that the application should be denied’ on the merits (L 2004, ch 738, § 23;  see CPL 440.46[3] ), nothing in CPL 440.46 supports a conclusion that such status renders a person ineligible to apply for resentencing in the first instance” (People v. Phillips, 82 AD3d at 1012).

DILLON, J.P., BALKIN, ENG and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court