People v Hernandez

People v Hernandez 2013 NY Slip Op 05225 Decided on July 10, 2013 Appellate Division, Second 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 July 10, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
SHERI S. ROMAN
JEFFREY A. COHEN, JJ.
2012-06245
(Ind. No. 10634/97)

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

v

Rene Hernandez, respondent.




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.


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 NY3d 238; cf. People v Gagliardo, 85 AD3d 943; People v Elmendorf, 83 AD3d 959; People v Garner, 83 AD3d 862; People v Rodriguez, 269 AD2d 613; People v Hernandez, 166 AD2d 609, 610).
DILLON, J.P., CHAMBERS, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court