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In Chatham, the Appellate Division, Third Department granted an untimely reargument motion where the First Department case relied on in the underlying decision was overruled by the Court of Appeals. (88 A.D.3d at 1063.)
Summary of this case from Rizzo v. Progressive Capital Sols.Opinion
2011-10-20
The PEOPLE of the State of New York, Respondent,v.Eric CHATHAM, Appellant.
Timothy S. Brennan, Schenectady, for appellant.Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.Before: PETERS, J.P., SPAIN, ROSE, STEIN and EGAN JR., JJ.
DECISION AND ORDER ON MOTION
Motion for reargument.
Upon the papers filed in support of the motion, and no papers having been filed in opposition thereto, and in light of defendant's pending application to the Court of Appeals for permission to appeal to the Court of Appeals and the fact that, subsequent to this Court's decision, the Court of Appeals, in People v. Paulin, 17 N.Y.3d 238, 929 N.Y.S.2d 36, 952 N.E.2d 1028 [2011], reversed the First Department in People v. Pratts, 74 A.D.3d 536, 904 N.Y.S.2d 380 [2010], the reasoning of which this Court had adopted in its opinion ( see
Dreifuss v. Cohen, 177 A.D.2d 682, 682, 576 N.Y.S.2d 613 [1991]; Foley v. Roche, 86 A.D.2d 887, 887, 447 N.Y.S.2d 528 [1982], lv. denied 56 N.Y.2d 507, 453 N.Y.S.2d 1025, 438 N.E.2d 1147 [1982] ), it is
ORDERED that the motion for reargument is granted, without costs, and the opinion and order decided and entered June 2, 2011 is vacated and the following memorandum and order is substituted therefor.
MEMORANDUM AND ORDER
STEIN, J.
Appeal from an order of the County Court of Schenectady County (Hoye, J.), entered March 30, 2010, which denied defendant's motion for resentencing pursuant to CPL 440.46.
Defendant was convicted after a jury trial of criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree (three counts) and attempted criminal sale of a controlled substance in the third degree. County Court sentenced defendant to an aggregate prison term of 4 to 12 years. The judgment of conviction was affirmed on appeal (55 A.D.3d 1045, 1046, 865 N.Y.S.2d 402 [2008], lv. denied 14 N.Y.3d 839, 901 N.Y.S.2d 145, 927 N.E.2d 566 [2010] ). Defendant was released on parole in 2008 but, thereafter, violated the terms of his parole and was reincarcerated. Defendant then moved for resentencing pursuant to CPL 440.46. County Court denied the motion without a hearing on the basis that he was not eligible for resentencing under that statute. Defendant now appeals.
Under CPL 440.46, which codifies a portion of the Drug Law Reform Act of 2009 (L. 2009, ch. 56), persons “imprisoned for class B drug felonies committed while the Rockefeller Drug Laws were in force [can] apply to be resentenced under the current, less severe, sentencing regime” ( People v. Paulin, 17 N.Y.3d 238, 243, 929 N.Y.S.2d 36, 952 N.E.2d 1028 [2011]; see CPL 440.46 [1] ). As the statute does not prohibit prisoners who have been paroled, and then reincarcerated for violating their parole, from seeking such relief ( see CPL 440.46; People v. Paulin, 17 N.Y.3d at 244, 929 N.Y.S.2d 36, 952 N.E.2d 1028), we must remit this matter for County Court to consider defendant's application and grant resentencing, “unless substantial justice dictates that” it be denied (L. 2004, ch. 738, § 23; see CPL 440.46[3]; People v. Paulin, 17 N.Y.3d at 244, 929 N.Y.S.2d 36, 952 N.E.2d 1028; People v. Samuels, 80 A.D.3d 1077, 1078, 915 N.Y.S.2d 758 [2011] ).
ORDERED that the order is reversed, on the law, and matter remitted to the County Court of Schenectady County for further proceedings not inconsistent with this Court's decision.
PETERS, J.P., SPAIN, ROSE and EGAN JR., JJ., concur.