People v. Myles
| Court | New York Supreme Court Appellate Division |
| Citation | 90 A.D.3d 952,2011 N.Y. Slip Op. 09350,935 N.Y.S.2d 99 |
| Parties | The PEOPLE, etc., respondent, v. Clarence MYLES, appellant. |
| Decision Date | 20 December 2011 |
2011 N.Y. Slip Op. 09350
90 A.D.3d 952
935 N.Y.S.2d 99
The PEOPLE, etc., respondent,
v.
Clarence MYLES, appellant.
Supreme Court, Appellate Division, Second Department, New York.
Dec. 20, 2011.
[935 N.Y.S.2d 100]
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel; Meghan McCarthy on the brief), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Ayelet Sela of counsel), for respondent.
PETER B. SKELOS, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.[90 A.D.3d 952] Appeal by the defendant from an order of the Supreme Court, Queens County (Lewis, J.), dated September 23, 2010, which denied, without a hearing, his motion to be resentenced pursuant to
[935 N.Y.S.2d 101]
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 November 29, 1994.
ORDERED that the order is affirmed.
At the time of the defendant's motion for resentencing, the 2009 Drug Law Reform Act, codified in CPL 440.46, provided that “[a]ny person in the custody of the department of correctional services convicted of a class B felony offense defined in article two hundred twenty of the penal law which was committed prior to [January 13, 2005], who is serving an indeterminate sentence with a maximum term of more than three years, may ... apply to be resentenced” (CPL former 440.46[1] ). However, the resentencing provisions of CPL 440.46 do not apply “to any person who is serving a sentence on a conviction for or has a predicate felony conviction for an exclusion offense” (CPL 440.46 [5] ). CPL 440.46(5)(a) defines an “exclusion offense” as “a crime for which the person was previously convicted within the preceding ten years, excluding any time during which the offender was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony, which was: (i) a violent felony offense as defined in section 70.02 of the penal law; or (ii) any other offense for which a merit time allowance is not available pursuant to subparagraph (ii) of paragraph (d) of subdivision one of section eight hundred three of the correction law” ( id.). The 10–year “look-back” period of CPL 440.46(5)(a) is properly measured from the date of the defendant's resentencing motion ( see [90 A.D.3d 953] People v. Brown, 85 A.D.3d 940, 941, 925 N.Y.S.2d 161; People...
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