PEOPLE, res, v. MICHAEL NIEVES, def-ap

8890. PEOPLE, res, v. MICHAEL NIEVES, def-ap — Richard M. Greenberg, Office of the Appellate Defender, New York (Avi Springer of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for res — Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on or about July 9, 2012, which, upon remand, denied defendant’s CPL 440.46 motion for resentencing, unanimously reversed, as a matter of discretion in the interest of justice, and the matter remanded to a different Justice for further proceedings on the motion.

Defendant was convicted in 1997 of class B drug felonies and sentenced to concurrent terms of 5 to 11 years. Following his release on parole, he was convicted of a class C felony in 2003 and was sentenced to a term of 3 to 7 years to run consecutively to the sentences imposed on the class B felonies. Thereafter, in 2009, defendant moved for resentencing on the class B felonies and Supreme Court denied the motion on the grounds that defendant was ineligible (27 Misc 3d 585 [Sup Ct, NY County 2010]). Defendant appealed and this Court reversed the denial of the motion and remanded the matter for further proceedings (94 AD3d 671 [2012]). This Court found that pursuant to Penal Law 70.30(1) (b) “[c]onsecutive terms are treated as a single, aggregate term… [and thus] defendant is deemed to be serving a sentence of 9 to 18 years, for a conviction that qualifies for possible resentencing” (id. at 672 [citations omitted]).