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The People of the State of v. James Scott

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


September 27, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JAMES SCOTT, APPELLANT.

Appeal from an order of the County Court of Schenectady County (Giardino, J.), entered February 8, 2012, which denied defendant's motion for resentencing pursuant to CPL 440.46.

The opinion of the court was delivered by: Spain, J.

MEMORANDUM AND ORDER

Calendar Date: September 13, 2012

Before: Rose, J.P., Spain, Kavanagh, Stein and McCarthy, JJ.

In 1996, defendant was convicted of the crime of criminal possession of a controlled substance in the third degree, as well as other drug-related crimes, and was sentenced to a prison term of 6 to 18 years. Although subsequently released on parole, defendant was reincarcerated for violating his parole. In 2010, defendant moved for resentencing pursuant to CPL 440.46. County Court denied the motion, finding that defendant's status as a parole violator rendered him ineligible to apply for resentencing. Defendant appeals.

As the People concede, reversal is required. Although defendant's status as a parole violator is to be considered in determining his application for resentencing, it does not render him ineligible for resentencing as a matter of law (see People v Paulin, 17 NY3d 238, 244 [2011]; People v Landy, 95 AD3d 1448 [2012]; People v Allen, 92 AD3d 980 [2012]). Accordingly, the order is reversed and this matter is remitted to County Court for further proceedings.

Rose, J.P., Kavanagh, Stein and McCarthy, 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

20120927

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