People v Dunham

People v Dunham 2007 NY Slip Op 10291 [46 AD3d 1416] December 21, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

The People of the State of New York, Respondent, v Robert R. Dunham, Appellant.

—[*1] Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), for defendant-appellant.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), for respondent.

Appeal from an order of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), entered March 22, 2006 pursuant to the 2005 Drug Law Reform Act. The order denied defendant's application to be resentenced upon defendant's 1995 conviction of criminal sale of a controlled substance in the second degree.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from an order pursuant to the 2005 Drug Law Reform Act (L 2005, ch 643, § 1) denying his application for resentencing upon his 1995 conviction of criminal sale of a controlled substance in the second degree (Penal Law § 220.41 [former (1)]). Supreme Court properly denied defendant's application because defendant was eligible for parole within three years of the time of his application and thus was not eligible to be resentenced (see L 2005, ch 643, § 1; People v Smith, 45 AD3d 1473 [2007]). Here, it is undisputed that, at the time of his application for resentencing in October 2005, defendant was eligible for parole in March 2007 and was released to parole supervision at that time. Present—Gorski, J.P., Martoche, Lunn, Fahey and Pine, JJ.