Ordered that the order is affirmed.
In order to apply for resentencing under CPL 440.46, a defendant must be in the custody of the Department of Correctional Services, must have been convicted of a class B felony drug offense under article 220 of the Penal Law that was committed prior to January 13, 2005, and must be serving an indeterminate sentence with a maximum of more than three years (see CPL 440.46 [1]; People v Overton,
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