The People, etc., respondent, v. Darin Howard, appellant. (2011)

Submitted—June 10, 2011

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.), dated August 19, 2010, which denied his motion to be resentenced pursuant to CPL 440.46 on his conviction of criminal sale of a controlled substance in the third degree, which sentence was originally imposed, upon his plea of guilty, on September 28, 2000.

ORDERED that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for further proceedings and a new determination of the defendant's motion.

The defendant appeals from an order denying his motion to be resentenced pursuant to CPL 440.46.   Contrary to the People's contention, the defendant's release to parole during the pendency of this appeal does not render the appeal academic (see People v. Santiago, NY3d, 2011 N.Y. Slip Op 5545 [2011];  People v. Overton, _ AD3d _, 2011 N.Y. Slip Op 04278 [2d Dept 2011] ).

Moreover, “prisoners who have been paroled, and then reincarcerated for violating their parole, are not for that reason barred from seeking relief under [CPL 440.46]” (People v. Paulin, NY3d, 2011 N.Y. Slip Op 05544 [2011] ).   Therefore, the Supreme Court erred in denying the defendant's motion on the ground that he was ineligible for resentencing pursuant to CPL 440.46.

The alternate ground raised by the People for affirming the denial of the defendant's motion may not be considered on this appeal by the defendant (see CPL 470.15[1];  People v. LaFontaine, 92 N.Y.2d 470, 474;  People v. Goodfriend, 64 N.Y.2d 695, 697;  People v. Fields, 151 A.D.2d 598, 600).

Accordingly, we remit the matter to the Supreme Court, Kings County, for further proceedings and a new determination of the defendant's motion.

DILLON, J.P., COVELLO, CHAMBERS and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court