People v Fuentes, 2011 NY Slip Op 05632 [85 AD3d 690]

June 30, 2011

Appellate Division, First Department

— [*1]

Steven Banks, The Legal Aid Society, New York (Michael McLaughlin of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Brian J. Reimels of counsel), for respondent.

Appeal from order, Supreme Court, Bronx County (John P. Collins, J.), entered February 11, 2010, which denied defendant’s CPL 440.46 motion for resentencing, unanimously dismissed as moot.

Defendant was released on parole during the pendency of this appeal and is not currently in custody. Therefore, he lost his eligibility for resentencing ( see CPL 440.46 [1]). Accordingly, his appeal is moot ( see People v Orta , 73 AD3d 452 [2010], lv denied 15 NY3d 755 [2010]). Concur—Tom, J.P., Saxe, Catterson, Moskowitz and Acosta, JJ. [Recalled and vacated, see 91 AD3d 453 .].