        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

394
KA 10-01441
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RAFAEL WALLACE, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (David
D. Egan, J.), entered May 20, 2010 pursuant to the 2009 Drug Law
Reform Act. The order denied defendant’s application to be
resentenced upon defendant’s 1993 conviction of criminal sale of a
controlled substance in the third degree, criminal possession of a
controlled substance in the third degree and criminal possession of a
controlled substance in the seventh degree.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law and the matter is remitted to Supreme
Court, Monroe County, for further proceedings in accordance with the
following Memorandum: On April 2, 1993 defendant was convicted upon a
jury verdict of, inter alia, criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]) and criminal
sale of a controlled substance in the third degree (§ 220.39 [1]). He
was sentenced as a second felony offender to an indeterminate term of
imprisonment of 10 to 20 years. Defendant was thereafter released on
parole, his parole was revoked based upon a violation and he was
reincarcerated. On March 19, 2010, while he was incarcerated,
defendant applied for resentencing pursuant to CPL 440.46.

     Supreme Court erred in denying defendant’s application on the
ground that defendant was ineligible to apply for resentencing because
he was incarcerated at that time based on a parole violation.
“[P]risoners who have been paroled, and then reincarcerated for
violating their parole, are not for that reason barred from seeking
relief under [CPL 440.46]” (People v Paulin, ___ NY3d ___, ___ [June
28, 2011]). The court further erred in denying the application on the
ground that defendant’s prior conviction of burglary in the second
degree (Penal Law § 140.25), a class C violent felony offense
committed on August 18, 1983, rendered him ineligible for
resentencing. Contrary to the conclusion of the court, that offense
                                 -2-                           394
                                                         KA 10-01441

does not fall within the definition of an “exclusion offense” (CPL
440.46 [5]), e.g., a violent felony offense for which defendant “was
previously convicted within the preceding ten years” (CPL 440.46 [5]
[a]). “The phrase ‘within the preceding ten years’ in CPL 440.46 (5)
does not refer to the period between the previous felon[y] and the
present felon[ies] but, rather, it refers to the 10-year period
preceding the date of filing of the application for resentencing”
(People v Reeb, 82 AD3d 1620, 1621; see People v Hill, 82 AD3d 77, 79-
80).

     We therefore reverse the order and remit the matter to Supreme
Court for further proceedings on defendant’s application for
resentencing pursuant to CPL 440.46.




Entered:   August 19, 2011                      Patricia L. Morgan
                                                Clerk of the Court
