The People, etc., respondent, v. Anthony Santiago, appellant. (2011)

Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. Anthony Santiago, appellant.

2010–07138 (Ind.No. 12291/95)

Decided: September 20, 2011

MARK C. DILLON, J.P. THOMAS A. DICKERSON JOHN M. LEVENTHAL LEONARD B. AUSTIN ROBERT J. MILLER, JJ. Lynn W.L. Fahey, New York, N.Y. (Ellen Fried of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Johnnette Traill of counsel;  William Palka on the brief), for respondent.

Submitted—September 7, 2011

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Erlbaum, J.), dated June 21, 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 a jury verdict, on October 21, 1996.

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

The defendant contends, and the People correctly concede, that contrary to the determination of the Supreme Court, his status as a reincarcerated parole violator did not render him ineligible to apply for resentencing pursuant to the 2009 Drug Law Reform Act, codified in CPL 440.46 (see People v. Paulin, 17 NY3d 238;  People v. Howard, 85 AD3d 1202, 1202–1203).   Accordingly, we reverse the order appealed from, and remit the matter to the Supreme Court, Queens County, for a new determination of the defendant's motion.

DILLON, J.P., DICKERSON, LEVENTHAL, AUSTIN and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court