People v Shumate

People v Shumate 2016 NY Slip Op 05675 Decided on July 28, 2016 Appellate Division, Third 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 and Entered: July 28, 2016
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[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

DAVID SHUMATE, Appellant.

Calendar Date: June 6, 2016
Before: Peters, P.J., Garry, Egan Jr., Devine and Aarons, JJ.

Kelly Egan, Rensselaer, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Schenectady County (Drago, J.), entered June 27, 2012, which denied defendant's application for resentencing pursuant to CPL 440.46.

In 1994, defendant was convicted of criminal sale of a controlled substance in the third degree and was sentenced as a persistent felony offender to 15 years to life in prison (see People v Shumate, 227 AD2d 719, 720 [1996], lv denied 88 NY2d 994 [1996]). In 2011, he applied for resentencing pursuant to CPL 440.46. County Court denied his application, finding that he was ineligible for resentencing under the statute due to his status as a persistent felony offender. He now appeals.

We must reverse County Court's order in view of the Court of Appeals' decision in People v Coleman (24 NY3d 114 [2014]). In that case, the Court held that a defendant's status as a

persistent felony offender does not preclude a court from considering such individual for resentencing pursuant to CPL 440.46 (id. at 116-117). Notably, the People have acknowledged this decision, do not oppose defendant's application and consent to a resentencing hearing. The matter is, accordingly, remitted to County Court for further proceedings.

Peters, P.J., Garry, Egan Jr., Devine and Aarons, JJ., concur.

ORDERED that the order is reversed, on the law, and matter remitted to the County [*2]Court of Schenectady County for further proceedings not inconsistent with this Court's decision.