Opinion
5741.
Decided on October 18, 2011.
Order, Supreme Court, New York County (Ronald A. Zweibel, J.), entered on or about May 6, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously reversed, on the law and as a matter of discretion in the interest of justice, the motion granted, the order replaced by an order specifying and informing defendant of a proposed sentence of 2 years plus 1½ years' postrelease supervision, and the matter remanded for further proceedings.
Steven Banks, The Legal Aid Society, New York (David Crow of counsel), and Davis Polk Wardwell LLP, New York (William Pollak of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
Mazzarelli, J.P., Moskowitz, Acosta, Renwick, DeGrasse, JJ.
The court denied resentencing both on the ground of ineligibility and on the merits. Defendant is eligible for resentencing ( see People v Santiago , 17 NY3d 246 ), and we conclude that substantial justice dictates resentencing as indicated ( see e.g. People v Milton , 86 AD3d 478 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.