People v. Degrafinreid

Appeal by the defendant from an order of the Supreme Court, Queens County (Kohm, J.), dated March 15, 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, after a jury trial, on July 8, 1999. Ordered that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for further proceedings on the motion. The defendant, at the time that he made his motion pursuant to CPL 440.46, was incarcerated as a result of a prior parole violation. This does not disqualify him from seeking relief under the terms of that statute (see People v Johnson, 83 AD3d 734 [2011]; People v Phillips, 82 AD3d 1011 [2011]; but see People v Cuello, 77 AD3d 500 [2010]; People v Pratts, 74 AD3d 536 [2010], lv granted 15 NY3d 895 [2010]; People v Paulin, 74 AD3d 685 [2010], lv granted 15 NY3d 854 [2010]). Accordingly, the matter must be remitted to the Supreme Court, Queens County, for further proceedings on the defendant’s motion and the issues raised in the People’s opposition papers that were left undecided, including whether the defendant is eligible for relief pursuant to CPL 440.46 notwithstanding the terms of [832] CPL 440.46 (5) (a). Mastro, J.E, Belen, Chambers and Roman, JJ., concur.