People v Spivey
2011 NY Slip Op 06415 [87 AD3d 880]
September 8, 2011
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, November 9, 2011


The People of the State of New York, Respondent,
v
Carlton Spivey, Appellant.

—[*1] 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, 17 NY3d 238 [2011]). Accordingly, we remand the matter to Supreme Court for further consideration of his application. Concur—Andrias, J.P., Friedman, Sweeny, Renwick and Rom�n, JJ.