People v Spivey

People v Spivey 2011 NY Slip Op 06415 Decided on September 8, 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 September 8, 2011
Andrias, J.P., Friedman, Sweeny, Renwick, Román, JJ.
5376 1468/02

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

v

Carlton Spivey, Defendant-Appellant.



 
Robert S. Dean, Center for Appellate Litigation, New York
(Mark W. Zeno of counsel), for appellant.

Order, Supreme Court, New York County (Daniel P. FitzGerald, J.), entered on or about August 6, 2010, which denied, on the ground of ineligibility, defendant's CPL 440.46 motion for resentencing, unanimously reversed, on the law, and the matter remanded to Supreme Court for further proceedings.

Defendant was released on parole shortly after he filed his resentencing motion.

Defendant is eligible to be resentenced under the 2009 Drug Law Reform Act (L 2009, ch 56), even though he was released on parole from custody on his drug conviction, but reincarcerated for a parole violation (see People v Paulin, __ NY3d __, 2011 NY Slip Op 05544 [2011]). Accordingly, we remand the matter to Supreme Court for further consideration of his application.

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

ENTERED: SEPTEMBER 8, 2011

CLERK