People v Nieves

People v Nieves 2012 NY Slip Op 03276 Decided on April 26, 2012 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 April 26, 2012
Andrias, J.P., Saxe, Catterson, Renwick, Román, JJ.
7490 2537/95

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

v

Michael Nieves, Defendant-Appellant.




Richard M. Greenberg, Office of the Appellate Defender, New
York (Avi Springer of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David P.
Stromes of counsel), for respondent.

Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on or about March 2, 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 for further proceedings.

As the People concede, defendant is eligible to be considered for resentencing because he is deemed to still be serving a sentence for a class B drug felony. Defendant was convicted in 1996 of class B drug felonies and sentenced to concurrent terms of 5½ to 11 years. After being released on parole, he was convicted of another felony in 2003 and received a consecutive term of 3½ to 7 years. Consecutive terms are treated
as a single, aggregate term (see Penal Law § 70.30[1][b]; People v Buss, 11 NY3d 553, 557 [2008]). Therefore, defendant is deemed to be serving a sentence of 9 to 18 years, for a conviction that qualifies for possible resentencing.

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

ENTERED: APRIL 26, 2012

CLERK