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

766
KA 10-01826
PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

MICHAEL J. GATEWOOD, DEFENDANT-APPELLANT.


ADAM H. VAN BUSKIRK, AURORA, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (ROMOLO CANZANO OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Cayuga County Court (Thomas G. Leone,
J.), entered May 6, 2010 pursuant to the 2009 Drug Law Reform Act.
The order denied defendant’s application to be resentenced upon
defendant’s 1998 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: Defendant appeals from an order denying his
application for resentencing pursuant to CPL 440.46, the 2009 Drug Law
Reform Act (DLRA-3). Although defendant is eligible to apply for
resentencing under DLRA-3 despite the fact that he had been released
from incarceration and was thereafter reincarcerated for violating the
conditions of his parole (see People v Paulin, ___ NY3d ___ [June 28,
2011]; People v Wallace, ___ AD3d ___ [Aug. 19, 2011]), we
nevertheless conclude that County Court did not abuse its discretion
in determining that substantial justice required denial of his
application (see People v Pipkin, 77 AD3d 770, lv denied 15 NY3d 955).
We reject defendant’s further contention that the court erred in
receiving the limited testimony of the District Attorney regarding his
personal knowledge of defendant’s criminal history (see generally CPL
440.46 [3]; L 2004, ch 738, § 23).




Entered:    August 19, 2011                        Patricia L. Morgan
                                                   Clerk of the Court
