People v. Landy

Appellate Division of the Supreme Court of New York

People v. Landy

95 A.D.3d 1448, 943 N.Y.S.2d 691

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 10, 2012

StatusPublished

Cited by4 cases

This text of 95 A.D.3d 1448 (People v. Landy) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Landy, 95 A.D.3d 1448, 943 N.Y.S.2d 691 (N.Y. Ct. App. 2012).

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Opinion

Rose, J.

Appeal from an order of the County Court of Schenectady County (Drago, J.), entered October 13, 2010, which denied defendant’s motion for resentencing pursuant to CPL 440.46.

In 1997, defendant was convicted upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree (two counts) and was thereafter sentenced to an aggregate prison term of 8 to 16 years. In 2009, while on parole, defendant violated the terms of his parole and was reincarcerated. Defendant thereafter moved for resentencing pursuant to CPL 440.46. County Court denied the motion on the basis that defendant was ineligible to apply for resentencing because he had violated parole. Defendant now appeals.

We reverse. Defendant’s status as a reincarcerated parole violator does not render him ineligible for resentencing as a matter of law (see People v Paulin, 17 NY3d 238, 244 [2011]), although it may be taken into consideration in determining whether or not to grant his application (see People v Chaires, 89 AD3d 1282, 1282 [2011]; People v Chatham, 88 AD3d 1063, [1449]*14491064 [2011]). Accordingly, the order must be reversed and the matter remitted to County Court for further proceedings.

Peters, PJ., Mercure, Lahtinen and Egan Jr., JJ., concur. 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.

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Rose, J.

Appeal from an order of the County Court of Schenectady County (Drago, J.), entered October 13, 2010, which denied defendant’s motion for resentencing pursuant to CPL 440.46.

In 1997, defendant was convicted upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree (two counts) and was thereafter sentenced to an aggregate prison term of 8 to 16 years. In 2009, while on parole, defendant violated the terms of his parole and was reincarcerated. Defendant thereafter moved for resentencing pursuant to CPL 440.46. County Court denied the motion on the basis that defendant was ineligible to apply for resentencing because he had violated parole. Defendant now appeals.

We reverse. Defendant’s status as a reincarcerated parole violator does not render him ineligible for resentencing as a matter of law (see People v Paulin, 17 NY3d 238, 244 [2011]), although it may be taken into consideration in determining whether or not to grant his application (see People v Chaires, 89 AD3d 1282, 1282 [2011]; People v Chatham, 88 AD3d 1063, [1449]*14491064 [2011]). Accordingly, the order must be reversed and the matter remitted to County Court for further proceedings.

Peters, PJ., Mercure, Lahtinen and Egan Jr., JJ., concur. 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.

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Bluebook (online)

95 A.D.3d 1448, 943 N.Y.S.2d 691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-landy-nyappdiv-2012.

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