SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
August 19, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from an order of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), entered August 17, 2010 pursuant to the 2009 Drug Law Reform Act.
People v Jenkins
Appellate Division, Fourth Department
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.
Decided on August 19, 2011
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.
The order denied defendant's application to be resentenced upon defendant's 2005 conviction of criminal possession of a controlled substance in the third degree.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law and
the matter is remitted to Supreme Court, Onondaga County, for further proceedings in accordance
with the following Memorandum: Defendant appeals from an order denying his application for
resentencing under the 2009 Drug Law Reform Act (CPL 440.46). We agree with defendant that
Supreme Court erred in determining that he was ineligible for resentencing because he had previously
been released on parole and at the time of his application was reincarcerated for violating his parole
(see People v Paulin, ___ NY3d ___ [June 28, 2011]). Further, because defendant was incarcerated at
the time of his application, the fact that he was subsequently re-released on parole does not render his
application moot (see People v Santiago, ___ NY3d ___ [June 28, 2011]). We therefore reverse the order
and remit the matter to Supreme Court for further proceedings on defendant's application for resentencing
pursuant to CPL 440.46.
Entered: August 19, 2011
Patricia L. Morgan Clerk of the Court
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