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

1356
KA 10-00460
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICKEY WILLIAMS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Richard
C. Kloch, Sr., A.J.), entered March 17, 2010 pursuant to the 2009 Drug
Law Reform Act. The order denied defendant’s application to be
resentenced upon defendant’s 1995 conviction of criminal sale of a
controlled substance in the third degree (three counts) and criminal
possession of a controlled substance in the third degree (three
counts).

     It is hereby ORDERED that the order so appealed from is
unanimously reversed as a matter of discretion in the interest of
justice and on the law and the matter is remitted to Supreme Court,
Erie County, 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 2009 Drug Law Reform Act.
We conclude that the record is insufficient to support the
determination of Supreme Court that defendant was ineligible for
resentencing on the ground that his 1976 conviction of robbery in the
second degree (Penal Law § 160.10) constituted an “exclusion offense”
as defined in CPL 440.46 (5) (a) (i). We agree with defendant that
the record fails to establish “the time of commission of the previous
felony” and whether the court properly calculated the look-back period
of 10 years as tolled by defendant’s periods of incarceration (CPL
440.46 [5] [a]). Although defendant failed to preserve those
contentions for our review (see CPL 470.05 [2]), we nevertheless
exercise our power to review them as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). Further, we are unable
to conclude on the record before us whether defendant’s prior
conviction of robbery in the second degree was a second violent felony
offense rendering him ineligible for resentencing pursuant to CPL
440.46 (5) (b). We therefore reverse the order, and we remit the
matter to Supreme Court to determine the date on which defendant
committed the prior offense of robbery in the second degree and to
                                 -2-                          1356
                                                         KA 10-00460

calculate the periods for which defendant was incarcerated after that
offense in order to determine if that offense constituted an exclusion
offense pursuant to CPL 440.46 (5) (a) (i). Upon remittal, the court
must also determine whether that offense was a second violent felony
offense that constitutes an exclusion offense pursuant to CPL 440.46
(5) (b).




Entered:   December 23, 2011                   Frances E. Cafarell
                                               Clerk of the Court
