State of New York Supreme Court, Appellate Division Third Judicial Department
February 2, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
WILLIAM C. ALLEN, APPELLANT.
Appeal from an order of the County Court of Broome County (Smith, J.), entered January 11, 2011, which denied defendant's motion for resentencing pursuant to CPL 440.46.
The opinion of the court was delivered by: Egan Jr., J.
MEMORANDUM AND ORDER
Calendar Date: January 12, 2012
Before: Lahtinen, J.P., Spain, Stein, Garry and Egan Jr., JJ.
In 1999, defendant was convicted upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree and sentenced to a prison term of 41/2 to 9 years. While on parole for that conviction, defendant was arrested, convicted of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and false personation and returned to prison. In September 2010, defendant moved 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, finding that defendant was ineligible for resentencing because of his status as a parole violator and his commission of an exclusionary offense subsequent to the drug offense for which he sought resentencing. Defendant now appeals.
As the People concede, reversal is required. Although relevant factors to be taken into consideration in determining whether to ultimately grant defendant's application for resentencing, neither defendant's status as a parole violator nor his commission of a violent felony offense subsequent to the drug offense at issue renders him ineligible for resentencing as a matter of law (see People v Paulin, 17 NY3d 238, 244 ; People v Chaires, 89 AD3d 1282, 1282 ; People v Devivo, 87 AD3d 794, 795-796 ). Accordingly, the order is reversed and this matter is remitted to County Court for further proceedings.
Lahtinen, J.P., Spain, Stein and Garry, JJ., concur.
ORDERED that the order is reversed, on the law, and matter remitted to the County Court of Broome County for further proceedings not inconsistent with this Court's decision.
Robert D. Mayberger Clerk of the Court
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