People v.Garcia

Order, Supreme Court, Bronx County (John E Collins, J.), entered December 9, 2009, which denied defendant’s CEL 440.46 motion for resentencing, unanimously affirmed. Defendant was released on parole shortly after he filed his [646] resentencing motion. Accordingly, the court correctly determined that defendant had lost his eligibility for resentencing, and denied the motion on that basis (see CPL 440.46 [1]; see also People v Orta, 73 AD3d 452 [2010], lv denied 15 NY3d 755 [2010]). “The purpose of the [Drug Law Reform Act] resentencing provisions is to relieve prison inmates of onerous sentences of incarceration” (People v Pratts, 74 AD3d 536, 536 [2010], lv granted 15 NY3d 895 [2010]). Only persons in custody are permitted to apply for resentencing. A reduction in an inmate’s prison term may have the incidental effect of also reducing his or her supervisory term by replacing parole with a shorter term of postrelease supervision (see Penal Law § 70.70 [3] [b]). Nevertheless, it is clear from the legislative scheme that resentencing under the Drug Law Reform Act of 2009 and its predecessors was not intended to provide a remedy for a defendant who no longer has a prison term for the court to reduce, and who only seeks a reduction in the supervisory portion of a sentence. Instead, the Legislature provided that parolees could earn relief from supervision by way of Executive Law § 259-j (3-a). Concur — Gonzalez, PJ., Mazzarelli, Richter, Manzanet-Daniels and Román, JJ.