People v Matthews, 2011 NY Slip Op 07907 [89 AD3d 486]

November 10, 2011

Appellate Division, First Department

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

Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), for respondent.

Order, Supreme Court, New York County (Marcy L. Kahn, J.), entered on or about July 19, 2010 which denied defendant’s CPL 440.46 motion for resentencing, unanimously reversed, on the law, and the matter remanded to Supreme Court for further proceedings on the motion.

At the time he filed his application, defendant was eligible for consideration for resentencing even though he had been released from custody on his drug convictions but reincarcerated for parole violations ( see People v Paulin , 17 NY3d 238 [2011]). That he was released on parole again while this appeal was pending did not bar defendant from obtaining resentencing ( see People v Santiago , 17 NY3d 246 [2011]). Concur—Mazzarelli, J.P., Catterson, DeGrasse, Abdus-Salaam and RomÁn, JJ..