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The People of the State of v. Moses Landy

State of New York Supreme Court, Appellate Division Third Judicial Department


May 10, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
MOSES LANDY, APPELLANT.

Appeal from an order of the County Court of Schenectady County (Drago, J.), entered October 13, 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: April 18, 2012

Before: Peters, P.J., Mercure, Rose, Lahtinen and Egan Jr., JJ.

In 1997, defendant was convicted upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree (two counts) and was thereafter sentenced to an aggregate prison term of 8 to 16 years. In 2009, while on parole, defendant violated the terms of his parole and was reincarcerated. Defendant thereafter moved for resentencing pursuant to CPL 440.46. County Court denied the motion on the basis that defendant was ineligible to apply for resentencing because he had violated parole. Defendant now appeals.

We reverse. Defendant's status as a reincarcerated parole violator does not render him ineligible for resentencing as a matter of law (see People v Paulin, 17 NY3d 238, 244 [2011]), although it may be taken into consideration in determining whether or not to grant his application (see People v Chaires, 89 AD3d 1282, 1282 [2011]; People v Chatham, 88 AD3d 1063, 1064 [2011]). Accordingly, the order must be reversed and the matter remitted to County Court for further proceedings.

Peters, P.J., Mercure, Lahtinen and Egan Jr., JJ., concur.

ORDERED that the order 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

20120510

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