People v Turner, 2011 NY Slip Op 04373 [84 AD3d 649]

May 26, 2011

Appellate Division, First Department

— [*1]

Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Cynthia A. Carlson of counsel), for respondent.

Appeal from order, Supreme Court, Bronx County (John P. Collins, J.), entered October 1, 2010, which denied defendant’s CPL 440.46 motion for resentencing, unanimously dismissed, without costs, as moot.

Since defendant was released on parole during the pendency of this appeal and is not currently in custody, he lost any eligibility for resentencing he may have had ( see CPL 440.46 [1]). Therefore, this appeal is moot ( see People v Orta , 73 AD3d 452 [2010], lv denied 15 NY3d 755 [2010]).

In any event, defendant was also ineligible for resentencing at the time he filed his motion in that he was released on parole from custody on his drug conviction but reincarcerated for a parole violation ( see People v Pratts , 74 AD3d 536 [2010], lv granted 15 NY3d 895 [2010]). Concur—Gonzalez, P.J., Mazzarelli, Richter, Manzanet-Daniels and RomÁn, JJ..