                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 28, 2016                     107256
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

DAVID SHUMATE,
                    Appellant.
________________________________


Calendar Date:   June 6, 2016

Before:   Peters, P.J., Garry, Egan Jr., Devine and Aarons, JJ.

                             __________


     Kelly Egan, Rensselaer, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.

                             __________


      Appeal from an order of the County Court of Schenectady
County (Drago, J.), entered June 27, 2012, which denied
defendant's application for resentencing pursuant to CPL 440.46.

      In 1994, defendant was convicted of criminal sale of a
controlled substance in the third degree and was sentenced as a
persistent felony offender to 15 years to life in prison (see
People v Shumate, 227 AD2d 719, 720 [1996], lv denied 88 NY2d 994
[1996]). In 2011, he applied for resentencing pursuant to CPL
440.46. County Court denied his application, finding that he was
ineligible for resentencing under the statute due to his status
as a persistent felony offender. He now appeals.

      We must reverse County Court's order in view of the Court
of Appeals' decision in People v Coleman (24 NY3d 114 [2014]).
In that case, the Court held that a defendant's status as a
                              -2-                  107256

persistent felony offender does not preclude a court from
considering such individual for resentencing pursuant to CPL
440.46 (id. at 116-117). Notably, the People have acknowledged
this decision, do not oppose defendant's application and consent
to a resentencing hearing. The matter is, accordingly, remitted
to County Court for further proceedings.

      Peters, P.J., Garry, Egan Jr., Devine and Aarons, JJ.,
concur.



      ORDERED that the order is reversed, on the law, and matter
remitted to the County Court of Schenectady County for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
