TOM
Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), and Chadbourne & Parke LLP, New York (Michael A. Samalin of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Nancy D. Killian of counsel), for respondent.
TOM, J.P., FRIEDMAN, CATTERSON, ACOSTA, FREEDMAN, JJ.
Order, Supreme Court, Bronx County (John P. Collins, J.), entered May 3, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously reversed, on the law, and the matter remanded for de novo proceedings on the motion.
Defendant was eligible for consideration for resentencing even though he had been released from custody on his underlying drug conviction but reincarcerated for a parole violation ( see People v. Paulin, 17 N.Y.3d 238, 929 N.Y.S.2d 36, 952 N.E.2d 1028 [2011] ).
The court ruled in the alternative that substantial justice dictated that defendant's motion be denied. However, defendant was denied his right to be “brought before the court and given an opportunity to be heard” ( People v. Soler, 45 A.D.3d 499, 846 N.Y.S.2d 59 [2007], lv. dismissed 9 N.Y.3d 1009, 850 N.Y.S.2d 397, 880 N.E.2d 883 [2007] ). The court issued its order by mail several weeks in advance of defendant's first scheduled appearance before it. Therefore, defendant had no opportunity to be heard on the issue of whether substantial justice dictated denial of his motion ( see People v. Scarborough, 88 A.D.3d 585, 585, 931 N.Y.S.2d 495 [2011] ).
We have considered and rejected the People's arguments concerning preservation.