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

592
KA 10-02511
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JULIAN JENKINS, DEFENDANT-APPELLANT.


LINDA GEHRON, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (John
J. Brunetti, A.J.), entered August 17, 2010 pursuant to the 2009 Drug
Law Reform Act. The order denied defendant’s application to be
resentenced upon defendant’s 2005 conviction of criminal possession of
a controlled substance in the third 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, Onondaga County, for further proceedings in accordance with the
following Memorandum: Defendant appeals from an order denying his
application for resentencing under the 2009 Drug Law Reform Act (CPL
440.46). We agree with defendant that Supreme Court erred in
determining that he was ineligible for resentencing because he had
previously been released on parole and at the time of his application
was reincarcerated for violating his parole (see People v Paulin, ___
NY3d ___ [June 28, 2011]). Further, because defendant was
incarcerated at the time of his application, the fact that he was
subsequently re-released on parole does not render his application
moot (see People v Santiago, ___ NY3d ___ [June 28, 2011]). 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
