People v. Irvin

• Citation: 2012 N.Y. Slip Op. 04551,945 N.Y.S.2d 907,96 A.D.3d 1453
• Parties: The PEOPLE of the State of New York, Respondent, v. Pliekou IRVIN, Defendant–Appellant.
• Decision Date: 08 June 2012
• Court: New York Supreme Court Appellate Division

96 A.D.3d 1453
945 N.Y.S.2d 907
2012 N.Y. Slip Op. 04551

The PEOPLE of the State of New York, Respondent,
v.
Pliekou IRVIN, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

June 8, 2012.

Appeal from an order of the Ontario County Court (William F. Kocher, J.), dated June 7, 2010 pursuant to the 2009 Drug Law Reform Act. The order denied defendant's application to be resentenced upon defendant's 2002 conviction of criminal sale of a controlled substance in the third degree.
Leanne Lapp, Public Defender, Canandaigua (David M. Parks of Counsel), for defendant-appellant.

R. Michael Tantillo, District Attorney, Canandaigua, for respondent.

MEMORANDUM:

On defendant's appeal from an order denying his application for resentencing pursuant to the 2009 Drug Law Reform Act ( see CPL 440.46), the People correctly concede that defendant's status as a reincarcerated parole violator did not render him ineligible to apply for resentencing ( see People v. Paulin, 17 N.Y.3d 238, 242, 929 N.Y.S.2d 36, 952 N.E.2d 1028;People v. Cobb, 90 A.D.3d 779, 934 N.Y.S.2d 349;People v. Wallace, 87 A.D.3d 824, 824, 928 N.Y.S.2d 802). Although County Court also denied his application on the ground that substantial justice dictated that the application be denied, we conclude that the court erred in making that determination without the benefit of a hearing ( cf. People v. Beasley, 47 A.D.3d 639, 640–641, 850 N.Y.S.2d 140;People v. Rivers, 43 A.D.3d 1247, 1247–1248, 842 N.Y.S.2d 611,lv. dismissed9 N.Y.3d 993, 848 N.Y.S.2d 610, 878 N.E.2d 1026). At the very least, the court should have permitted defendant and his attorney to appear and explain “ ‘why resentencing was warranted’ ” ( People v. Morales, 46 A.D.3d 1395, 1395, 848 N.Y.S.2d 486,lv. dismissed10 N.Y.3d 768, 854 N.Y.S.2d 330, 883 N.E.2d 1265).

We therefore reverse the order and remit the matter to County Court for further proceedings on defendant's application for resentencing pursuant to CPL 440.46.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law and the matter is remitted to Ontario County Court for further proceedings.

*908SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, and LINDLEY, JJ., concur.