SCI v. Dayshawn Jenkins, Defendant–Appellant.

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

The People of the State of New York, SCI / Respondent, v. Dayshawn Jenkins, Defendant–Appellant.

5424– 3200C 05 5425

Decided: July 28, 2011

Saxe, J.P., Sweeny, Catterson, Freedman, Manzanet–Daniels, JJ. Steven Banks, The Legal Aid Society, New York (David Crow of counsel), and Davis Polk & Wardwell LLP, New York (Shingira Masanzu of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Thomas R. Villecco of counsel), for respondent.

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Order, Supreme Court, Bronx County (Seth L. Marvin, J.), entered on or about September 28, 2010, which granted defendant's motion for reargument, and adhered to its original determination denying defendant's CPL 440.46 motion for resentencing, unanimously reversed, as a matter of discretion in the interest of justice, and the matter remanded for further proceedings.   Appeal from order, same court and Justice, entered on or about August 12, 2010, which denied the motion for resentencing, unanimously dismissed, without costs, as subsumed in the appeal from the September 28, 2010 order.

When a defendant moves for resentencing under the Drug Law Reform Act, the defendant is entitled to be brought before the court and given an opportunity to be heard (People v. Figueroa, 21 AD3d 337, 339 [2005], lv denied 6 NY3d 753 [2005] ).   In this case defendant was never before the court on his resentencing motion.

Thus the determination denying resentencing must be vacated and the matter remanded for a hearing on defendant's CPL 440.46 motion.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK