PEOPLE v. HERNANDEZ

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from an order pursuant to the 2005 Drug Law Reform Act ([DLRA-2] L 2005, ch 643, § 1) denying his application for resentencing upon his 1999 conviction of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [former (1)]). County Court properly denied the application of defendant because he was eligible for parole in June 2006, well within three years of the time of his application in October 2005 ( see L 2005, ch 643, § 1; People v Smith, 45 AD3d 1478). "Moreover, we conclude that DLRA-2 was never intended to apply to class A-II felony offenders `who have served their term of imprisonment, have been released from prison to parole supervision, and whose parole is then violated, with a resulting period of incarceration'" ( Smith, 45 AD3d at 1480). Here, defendant had served his minimum sentence, violated parole on two occasions, and was again incarcerated after both violations ( see id.; People v Bagby, 11 Misc 3d 882, 887).