NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 29, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JAMES RODRIGUEZ, DEFENDANT-APPELLANT.
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.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Friedman, Acosta, DeGrasse, RomÁn, JJ.
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 ; see also People v Mills, 11 NY3d 527, 537 ). 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 NY3d at 537). "Surely the Legislature did not intend fresh crimes to trigger resentencing opportunities" (id.).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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