Opinion
2012-10-17
The PEOPLE, etc., respondent, v. Timothy ASHBY, appellant.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Caroline R. Donhauser, and Terrence F. Heller of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Caroline R. Donhauser, and Terrence F. Heller of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Guzman, J.), dated December 9, 2010, which denied his motion to be resentenced pursuant to CPL 440.46 on his conviction of criminal sale of a controlled substance in the third degree, which sentence was originally imposed, upon his plea of guilty, on September 24, 2003.
ORDERED that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 440.46.
The defendant contends, and the People correctly concede, that contrary to the Supreme Court's determination, his status as a reincarcerated parole violator did not render him ineligible to apply for resentencing pursuant to the Drug Law Reform *912Act of 2009, codified in CPL 440.46 ( see People v. Paulin, 17 N.Y.3d 238, 241–242, 929 N.Y.S.2d 36, 952 N.E.2d 1028;People v. Ashton, 95 A.D.3d 1137, 943 N.Y.S.2d 895;People v. Cobb, 90 A.D.3d 779, 934 N.Y.S.2d 349;People v. Rodriguez, 89 A.D.3d 1042, 933 N.Y.S.2d 565;People v. Martin, 89 A.D.3d 1039, 933 N.Y.S.2d 557). Accordingly, the order appealed from must be reversed, and the matter remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 440.46.