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 April 24, 2012
Tom, J.P., Friedman, Catterson, Acosta, Freedman, JJ.
Order, Supreme Court, Bronx County (John P. Collins, J.), entered May 3, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously reversed, on the law, and the matter remanded for de novo proceedings on the motion.
Defendant was eligible for consideration for resentencing even though he had been released from custody on his underlying drug conviction but reincarcerated for a parole violation (see People v Paulin, 17 NY3d 238 ).
The court ruled in the alternative that substantial justice dictated that defendant's motion be denied. However, defendant was denied his right to be "brought before the court and given an opportunity to be heard" (People v Soler, 45 AD3d 499 , lv dismissed 9 NY3d 1009 ). The court issued its order by mail several weeks in advance of defendant's first scheduled appearance before it. Therefore, defendant had no opportunity to be heard on the issue of whether substantial justice dictated denial of his motion (see People v Scarborough, 88 AD3d 585, 585 ).
We have considered and rejected the People's arguments concerning preservation.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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