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People v. Hernandez

Supreme Court of New York, Second Department

July 10, 2013

The People of the State of New York, appellant,
v.
Rene Hernandez, respondent. Ind. No. 10634/97

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jessica L. Zellner of counsel), for appellant.

Lynn W. L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, JEFFREY A. COHEN, JJ.

DECISION & ORDER

Appeal by the People from a resentence of the Supreme Court, Queens County (Camacho, J.), imposed May 16, 2012, pursuant to CPL 440.46, upon the defendant's conviction of criminal sale of a controlled substance in the third degree, upon a jury verdict.

ORDERED that the appeal is dismissed as academic.

The People contend that the Supreme Court erred in granting the defendant's motion for resentencing pursuant to CPL 440.46 because he was on parole and not "in the custody of the department of corrections and community supervision" within the meaning of the statute at the time he made his motion. The record indicates that the maximum expiration date of the defendant's original sentence has expired. Accordingly, the appeal has been rendered academic (see People v Paulin, 17 N.Y.3d 238; cf. People v Gagliardo, 85 A.D.3d 943; People v Elmendorf, 83 A.D.3d 959; People v Garner, 83 A.D.3d 862; People v Rodriguez, 269 A.D.2d 613; People v Hernandez, 166 A.D.2d 609, 610).

DILLON, J.P., CHAMBERS, ROMAN and COHEN, JJ., concur.


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