         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
241
KA 10-01094
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GARY REEB, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Erie County Court (Michael F.
Pietruszka, J.), entered April 8, 2010 pursuant to the 2009 Drug Law
Reform Act. The order denied defendant’s application to be
resentenced upon defendant’s 2004 conviction of criminal sale of a
controlled substance in the third degree.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: On October 13, 2004 defendant was convicted upon his
plea of guilty of criminal sale of a controlled substance in the third
degree (Penal Law § 220.39 [1]) and was sentenced as a second felony
offender to an indeterminate term of incarceration of 6 to 12 years.
That crime was committed on September 20, 2003. On January 21, 2010,
defendant applied for resentencing pursuant to CPL 440.46. County
Court denied the application on the ground that defendant was
ineligible for resentencing because he had a predicate conviction for
an “exclusion offense,” i.e., “a crime for which [defendant] was
previously convicted within the preceding ten years, excluding any
time during which [he] was incarcerated for any reason between the
time of commission of the previous felony and the time of commission
of the present felony, which was . . . a violent felony offense as
defined in section 70.02 of the penal law” (CPL 440.46 [5] [a] [i]).
On October 27, 1995, defendant was convicted of two class D violent
felony offenses, committed on August 18, 1995 and September 5, 1994,
respectively.

     The court erred in denying defendant’s application on the ground
that the two violent felony offenses fall within the definition of
“exclusion offense” because they were committed within the 10-year
period preceding the instant controlled substance offense for which
defendant seeks resentencing. The phrase “within the preceding ten
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                                                         KA 10-01094

years” in CPL 440.46 (5) does not refer to the period between the
previous felonies and the present felony but, rather, it refers to the
10-year period preceding the date of filing of the application for
resentencing (see People v Hill, ___ AD3d ___ [Feb. 18, 2011]; People
v Sosa, ___ AD3d ___ [Feb. 8, 2011]). The record, however, supports
the People’s contention that, taking into account the time during
which defendant was incarcerated between the previous felonies and the
present felony, defendant’s application was premature (see CPL 440.46
[5] [a]), and thus the application was properly denied.




Entered:   March 25, 2011                       Patricia L. Morgan
                                                Clerk of the Court
