Argued June 2, 2011; decided June 28, 2011

People v Santiago, 77 AD3d 407, reversed.

Smith, J.

At least until a recent amendment, the 2009 Drug Law Reform Act (DLRA) allowed only incarcerated offenders, not offenders free on parole, to apply for resentencing (see People v Paulin, 17 NY3d 238 [2011] [decided today]). We hold in this case that a prisoner [*2]who applied before being paroled is not barred from obtaining resentencing after her release.

Defendant was sentenced to 4« to 9 years in prison for a 2003 drug transaction. On November 25, 2009, she filed an application for resentencing under the 2009 DLRA. On December{**17 NY3d at 248} 3, 2009, before the application had been ruled on, she was released on parole. Supreme Court later denied her application, and the Appellate Division affirmed, saying that because defendant "is not in custody, she is not presently eligible for resentencing" (People v Santiago, 77 AD3d 407 [1st Dept 2010]). A Judge of this Court granted leave to appeal, and we now reverse.

This case, like Paulin, is controlled by CPL 440.46 (1) (codifying, in part, the 2009 DLRA), which as originally enacted said, in relevant part:

"Any person in the custody of the department of correctional services convicted of a class B felony offense defined in article two hundred twenty of the penal law which was committed prior to January thirteenth, two thousand five, who is serving an indeterminate sentence with a maximum term of more than three years, may . . . apply to be resentenced . . . ."^[FN*]

It is undisputed that defendant was entitled to "apply" for resentencing when she filed her application, because at that time she was still in custody. The People argue, however, that the statute was not intended to benefit those who have already been released when their applications are decided. The argument is not an unreasonable one. As we point out in Paulin, the apparent reason why the Legislature limited the statute's benefit to incarcerated offenders is that they suffer the greatest hardship from severe sentences (see 17 NY3d at 244). It is also true, as the People point out, that another avenue of relief is open to parolees. Executive Law § 259-j authorizes the Division of Parole to grant termination of sentence under certain circumstances; subdivisions (3) and (3-a) of that section specifically permit, and in some cases require, the termination of sentences of paroled felony drug offenders.

On the other hand, the 2009 DLRA says only that an offender must be in custody when he or she applies for resentencing; it does not require that custody continue until the application is decided. And to read that requirement into the statute would have significant [*3]disadvantages: it could produce gamesmanship,{**17 NY3d at 249} and unnecessarily arbitrary results, by leading the parties, and perhaps some judges, to try to accelerate or slow progress toward a decision in the expectation that parole release will cause the application to fail. We conclude that it is best to read the statute as it is written. We hold that it applies to an offender who was in prison at the time she made her application, even though she was paroled before the application was decided.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to Supreme Court for further proceedings consistent with this opinion.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.

Order reversed, etc.