The People, etc., appellant, v. Rene Hernandez, respondent.

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

The People, etc., appellant, v. Rene Hernandez, respondent.

2012–06245 (Ind.No. 10634/97)

Decided: July 10, 2013

MARK C. DILLON, J.P. CHERYL E. CHAMBERS SHERI S. ROMAN JEFFREY A. COHEN, JJ. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jessica L. Zellner of counsel), for appellant. Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for respondent.

Submitted—June 4, 2013

DECISION & ORDER

Appeal by the People from a resentence of the Supreme Court, Queens County (Camacho, J.), imposed May 16, 2012, pursuant to CPL 440.46, upon the defendant's conviction of criminal sale of a controlled substance in the third degree, upon a jury verdict.

ORDERED that the appeal is dismissed as academic.

The People contend that the Supreme Court erred in granting the defendant's motion for resentencing pursuant to CPL 440.46 because he was on parole and not “in the custody of the department of corrections and community supervision” within the meaning of the statute at the time he made his motion.   The record indicates that the maximum expiration date of the defendant's original sentence has expired.   Accordingly, the appeal has been rendered academic (see People v. Paulin, 17 NY3d 238;  cf.  People v. Gagliardo, 85 AD3d 943;  People v. Elmendorf, 83 AD3d 959;  People v. Garner, 83 AD3d 862;  People v. Rodriguez, 269 A.D.2d 613;  People v. Hernandez, 166 A.D.2d 609, 610).

DILLON, J.P., CHAMBERS, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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