The People, etc., respondent, v. Luis Vidal, appellant.

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

The People, etc., respondent, v. Luis Vidal, appellant.

2010–06642 (Ind.No. 9331/94)

Decided: September 20, 2011

PETER B. SKELOS, J.P. RANDALL T. ENG LEONARD B. AUSTIN ROBERT J. MILLER, JJ. Lynn W.L. Fahey, New York, N.Y. (Bonnie H. Stein of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Terrence F. Heller of counsel), for respondent.

Submitted—September 6, 2011

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Ferdinand, J.), dated June 29, 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 February 22, 1995.

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 Supreme Court denied the defendant's motion for resentencing solely upon the ground that his status as a reincarcerated parole violator made him ineligible for relief under the 2009 Drug Law Reform Act, which is codified by CPL 440.46.   However, “prisoners who have been paroled, and then reincarcerated for violating their parole, are not for that reason barred from seeking relief under the statute” (People v. Paulin, 17 NY3d 238, 242;  see People v. Howard, 85 AD3d 1202;  People v. Phillips, 82 AD3d 1011, 1012).

Accordingly, the order appealed from must be reversed and the matter remitted to the Supreme Court, Kings County, for further proceedings and a new determination of the defendant's motion.

SKELOS, J.P., ENG, AUSTIN and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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