State of New York Supreme Court, Appellate Division Third Judicial Department
December 29, 2011
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
TYRONE HARVEY, APPELLANT.
Appeal from a judgment of the County Court of Schenectady County (Giardano, J.), rendered April 6, 2010, which denied defendant's motion for resentencing pursuant to CPL 440.46.
The opinion of the court was delivered by: Rose, J.
MEMORANDUM AND ORDER
Calendar Date: November 16, 2011
Before: Peters, J.P., Rose, Kavanagh, McCarthy and Garry, JJ.
In 2003, defendant was convicted of criminal sale of a controlled substance in the third degree and sentenced to 41/2 to 9 years in prison. In February 2010, he filed an application for resentencing under the Drug Law Reform Act of 2009 (see L 2009, ch 56, as codified in CPL 440.46). County Court denied the application on the ground that defendant was scheduled to be released on parole. This appeal ensued.
The record establishes, and the People agree, that defendant is entitled to a hearing on the merits of his resentencing application. Parole release is not a bar to obtaining resentencing where, as here, defendant was in prison at the time the application to be resentenced was made (see People v Santiago, 17 NY3d 246, 249 ).
Peters, J.P., Kavanagh, McCarthy and Garry, JJ., concur.
ORDERED that the judgment is reversed, on the law, and matter remitted to the County Court of Schenectady County for further proceedings not inconsistent with this Court's decision.
ENTER: Robert D. Mayberger Clerk of the Court
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