People v Scarborough

People v Scarborough 2011 NY Slip Op 07484 Decided on October 25, 2011 Appellate Division, First Department 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 October 25, 2011
Catterson, J.P., Richter, Manzanet-Daniels, Román, JJ. 5719-
1043/02 5720

[*1]The People of the State of New York, Respondent,

v

Terrence Scarborough, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Barbara Zolot of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Kayonia L.
Whetstone of counsel), for respondent.

Order, Supreme Court, Bronx County (John S. Moore, J.), entered March 15, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously reversed, as a matter of discretion in the interest of justice, and the matter remanded for further proceedings on the motion.

The court denied the motion on the ground of ineligibility. The court also determined, in the alternative, that substantial justice dictated denial of the motion.

Defendant is eligible for consideration for resentencing even though he had been released from custody on his drug conviction but reincarcerated for a parole violation (see People v Paulin, 17 NY3d 238 [2011]). Under the circumstances of this case, defendant is entitled to further proceedings on the issue of substantial justice.

An applicant for resentencing under the Drug Law Reform Act is entitled to be "brought before the court and given an opportunity to be heard" (People v Soler, 45 AD3d 499, 499 [2007], lv dismissed 9 NY3d 1009 [2007]). As the People concede, defendant was not produced in court on the date the court handed down its decision. Nor does the record show that he was given an opportunity to be heard at the court appearances before the decision was issued (People v Jenkins, 86 AD3d 522, 523 [2011]). Furthermore, there appears to be a disputed issue as to the extent of defendant's prison disciplinary record.

Defendant's request for assignment of the case to a different Justice is denied.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 25, 2011 [*2]

CLERK