           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
1089
KA 10-00160
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DERON BOSTIC, 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 Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), entered August 16, 2010 pursuant to the 2009 Drug
Law Reform Act. The order denied defendant’s application to be
resentenced upon defendant’s 2006 conviction of criminal possession of
a controlled substance in the third degree.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed 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. The People correctly concede that Supreme Court erred in
concluding that defendant is ineligible for resentencing on the ground
that he had a prior conviction for an “exclusion offense” defined in
CPL 440.46 (5) (a) (1). The court calculated the look-back period of
10 years set forth in that statute from the date that defendant
committed the crime for which he was applying to be resentenced,
rather than from the date of filing of the application for
resentencing (see People v Reeb, 82 AD3d 1620; People v Hill, 82 AD3d
77, 79-80). We therefore reverse the order, and we remit the matter
to Supreme Court to determine whether defendant’s application was
premature when filed and, if so, when the application will become ripe
for adjudication. Upon remittal, the court must first ascertain the
date on which defendant’s prior violent felony offense occurred. The
court must then ascertain the time period that defendant was
incarcerated for that prior violent felony offense, which the court
must exclude when calculating whether the prior violent felony offense
took place within the 10-year period preceding the date on which the
application for resentencing was filed (see Reeb, 82 AD3d 1620).

Entered:   November 10, 2011                       Patricia L. Morgan
                                                   Clerk of the Court
