The People, etc., respondent, v. Manuel Rivera, appellant. (2011)

Submitted—October 5, 2011

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Mullings, J.), dated October 1, 2010, which denied his motion to be resentenced pursuant to CPL 440.46 on his conviction of criminal possession of a controlled substance in the third degree, which sentence was originally imposed, upon his plea of guilty, on June 29, 2005.

ORDERED that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for further proceedings and a new determination of the defendant's motion to be resentenced pursuant to CPL 440.46.

The defendant contends, and the People correctly concede, that contrary to the determination of the Supreme Court, his release to parole during the pendency of his motion for resentencing pursuant to the 2009 Drug Law Reform Act, codified in CPL 440.46, did not render him ineligible for resentencing (see People v. Santiago, 17 NY3d 246, 247–249).   Accordingly, we reverse the order appealed from, and remit the matter to the Supreme Court, Queens County, for further proceedings and a new determination of the defendant's motion to be resentenced pursuant to CPL 440.46 (see People v. Young, AD3d [decided herewith] ).

MASTRO, J.P., BALKIN, CHAMBERS and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court