People v. Moores

Appellate Division of the Supreme Court of New York

People v. Moores

118 A.D.3d 731, 987 N.Y.S.2d 421

Appellate Division of the Supreme Court of the State of New York·Decided June 4, 2014·Published

Opinion

Appeal by the defendant from an order of the County Court, Suffolk County (Weber, J.), dated August 3, 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 July 20, 2004.

Ordered that the order is reversed, on the law, and the matter is remitted to the County Court, Suffolk County, for further proceedings pursuant to CPL 440.46.

The County Court erred in denying the defendant’s motion to be resentenced pursuant to CPL 440.46 on the ground that his status as a reincarcerated parole violator rendered him ineligible to be resentenced (see People v Paulin, 17 NY3d 238, 242 [2011]; People v Cabrera, 103 AD3d 748 [2013]; People v Ashby, 99 AD3d 931 [2012]; People v Berry, 89 AD3d 954, 955 [2011]). Accordingly, the order appealed from must be reversed, and the matter remitted to the County Court, Suffolk County, for further proceedings pursuant to CPL 440.46.

Rivera, J.E, Sgroi, Hinds-Radix and Maltese, JJ., concur.

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Appeal by the defendant from an order of the County Court, Suffolk County (Weber, J.), dated August 3, 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 July 20, 2004.

Ordered that the order is reversed, on the law, and the matter is remitted to the County Court, Suffolk County, for further proceedings pursuant to CPL 440.46.

The County Court erred in denying the defendant’s motion to be resentenced pursuant to CPL 440.46 on the ground that his status as a reincarcerated parole violator rendered him ineligible to be resentenced (see People v Paulin, 17 NY3d 238, 242 [2011]; People v Cabrera, 103 AD3d 748 [2013]; People v Ashby, 99 AD3d 931 [2012]; People v Berry, 89 AD3d 954, 955 [2011]). Accordingly, the order appealed from must be reversed, and the matter remitted to the County Court, Suffolk County, for further proceedings pursuant to CPL 440.46.

Rivera, J.E, Sgroi, Hinds-Radix and Maltese, JJ., concur.

People v. Moores, 118 A.D.3d 731, 987 N.Y.S.2d 421 (N.Y. Ct. App. 2014).

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