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The PEOPLE of the State of New York, Respondent, v. James RODRIGUEZ, Defendant-Appellant.

Decided: December 29, 2009

ANDRIAS, J.P., FRIEDMAN, ACOSTA, DeGRASSE, ROMÁN, JJ. Steven Banks, The Legal Aid Society, New York (David Crow of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Malancha Chanda of counsel), for respondent.

Order, Supreme Court, New York County (Robert M. Stolz, J.), entered on or about February 8, 2008, which denied defendant's motion to be resentenced, unanimously affirmed.

Defendant is not eligible to be resentenced under the 2004 Drug Law Reform Act (L 2004, ch 738, § 23). That act “was not intended to apply to those offenders who have served their term of imprisonment, have been released from prison to parole supervision, and whose parole is then violated, with a resulting period of incarceration” (People v. Bagby, 11 Misc.3d 882, 887 [2006]; see also People v. Mills, 11 N.Y.3d 527, 537 [2008] ). If defendant had not violated his parole conditions, he would not have been in the custody of the Department of Correctional Services when he moved to be resentenced, and he would therefore have been ineligible for resentencing (see Mills, 11 N.Y.3d at 537, 872 N.Y.S.2d 705, 901 N.E.2d 196). “Surely the Legislature did not intend fresh crimes to trigger resentencing opportunities” (id.).