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

605
KA 09-02644
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

EDUARDO JIMENEZ, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from an order of the Onondaga County Court (William D.
Walsh, J.), entered December 10, 2009 pursuant to the 2009 Drug Law
Reform Act. The order denied defendant’s application to be
resentenced upon defendant’s 2004 conviction of criminal possession of
a controlled substance in the third degree, criminal possession of a
controlled substance in the fourth 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 Onondaga
County Court for further proceedings in accordance with the following
Memorandum: Defendant appeals from an order denying his application
for resentencing pursuant to CPL 440.46. The People correctly concede
that County Court erred in determining that defendant is ineligible
for resentencing on the ground that he had a prior conviction for an
“exclusion offense” as defined in CPL 440.46 (5) (a) (ii). The court
made that determination by erroneously calculating the look-back
period of 10 years set forth in the statute from the date on which
defendant committed the crimes for which he seeks resentencing, rather
than from the date on which he filed the application for resentencing
(see People v Sosa, 18 NY3d 436, 440; People v Hill, 82 AD3d 77, 79-
80). We therefore reverse the order and remit the matter to County
Court for further proceedings on defendant’s application for
resentencing.




Entered:    June 8, 2012                           Frances E. Cafarell
                                                   Clerk of the Court
