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

657
KA 09-01933
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                                     MEMORANDUM AND ORDER

JAMES FIDA, 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 September 2, 2009 pursuant to the 2004 Drug Law
Reform Act. The order denied defendant’s application to be
resentenced upon defendant’s 1989 conviction of criminal sale of a
controlled substance in the first 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.

     Memorandum: Defendant appeals from an order denying his
application for resentencing under the 2004 Drug Law Reform Act
([DLRA-1] L 2004, ch 738, § 23). We agree with defendant that County
Court erred in determining that he was ineligible for resentencing
because he had previously been released on parole and was incarcerated
for a parole violation at the time of his application (see People v
Caban, 84 AD3d 828, 828). As the Court of Appeals has noted with
respect to the 2009 Drug Law Reform Act (see CPL 440.46), although
“many parole violators have shown by their conduct that they do not
deserve relief from their sentences[,] . . . courts can deny their
resentencing applications . . . if ‘substantial justice dictates that
the application should be denied’ ” (People v Paulin, 17 NY3d 238,
244, quoting L 2004, ch 738, § 23; see Caban, 84 AD3d 828). We
therefore reverse the order and remit the matter to County Court for
further proceedings on defendant’s application for resentencing
pursuant to DLRA-1.




Entered:   June 15, 2012                                Frances E. Cafarell
                                                        Clerk of the Court
