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

666
KA 10-00398
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

ROBERT SAFFOLD, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT 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 January 25, 2010 pursuant to the 2009 Drug Law
Reform Act. The order denied the application of defendant to be
resentenced upon defendant’s 2003 conviction of criminal possession of
a controlled substance in the third degree and criminal possession of
a controlled substance in the fifth 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 the 2009 Drug Law Reform Act (see CPL
440.46). As the People correctly concede, County Court erred in
denying the application on the ground that defendant was a
reincarcerated parole violator (see People v Paulin, 17 NY3d 238, 241-
242; People v Wallace, 87 AD3d 824, 824). In addition, it is of no
moment that defendant was released to parole supervision subsequent to
his application inasmuch as “a prisoner who applied before being
paroled is not barred from obtaining resentencing after [his or] her
release” (People v Santiago, 17 NY3d 246, 247). We therefore reverse
the order and remit the matter to County Court for further proceedings
on defendant’s application for resentencing pursuant to CPL 440.46.




Entered:   June 7, 2013                            Frances E. Cafarell
                                                   Clerk of the Court
