Opinion
2012-04-26
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.
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 5 1/2 to 11 years. After being released on parole, he was convicted of another felony in 2003 and received a consecutive term of 3 1/ 2 to 7 years. Consecutive terms are treated as a single, aggregate term ( see Penal Law § 70.30[1][b]; People v. Buss, 11 N.Y.3d 553, 557, 872 N.Y.S.2d 413, 900 N.E.2d 964 [2008] ). Therefore, defendant is deemed to be serving a sentence of 9 to 18 years, for a conviction that qualifies for possible resentencing.