| People v Burgos |
| 2007 NY Slip Op 07490 [44 AD3d 387] |
| October 9, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Misael Burgos, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jessica Slutsky of counsel), forrespondent.
Order, Supreme Court, New York County (Charles H. Solomon, J.), entered June 16, 2006,which denied defendant's motion to be resentenced, unanimously affirmed.
The motion court did not misapprehend the application of the Drug Law Reform Act (L2005, ch 643, § 1); unlike the court in People v Arana (32 AD3d 305 [2006]), it recognized defendant'seligibility for consideration, and providently exercised its discretion (see People v Vasquez, 41 AD3d111 [2007], lv dismissed 9 NY3d 870 [2007]).
Although the statute provides that "[t]he court shall offer an opportunity for a hearing andbring the applicant before it" (L 2005, ch 643, § 1), the critical facts here were uncontested,making it unnecessary for the court to convene an evidentiary hearing when the parties werebefore it (cf. People vFigueroa, 21 AD3d 337, 339 [2005], lv denied 6 NY3d 753 [2005]). There wasno error in declining to hold a hearing to determine defendant's exact position in the hierarchy ofthe drug sale operation in which he was involved, when his undisputed conduct, especially hispostarrest conduct, warranted the denial of resentencing in the exercise of the court's discretion.Defendant never disputed that he had (1) participated in conversations about murdering a sittingSupreme Court justice, (2) instigated a telephoned death threat against a supervising assistantdistrict attorney and his family, and (3) caused a bomb threat to be called in concerning theCriminal Court building in Manhattan. Indeed, this conduct had served as aggravating factorsjustifying a sentence longer than those imposed upon his codefendants. Defendant's apologiesand subsequent protests that he had never actually intended to harm the judge cannot negate thisshocking course of conduct. Notwithstanding defendant's protests that he was merely a low-levelseller, consideration of even his undisputed conduct supports the court's conclusion thatsubstantial justice dictated the denial of defendant's resentencing motion.Concur—Mazzarelli, J.P., Saxe, Friedman, Marlow and Williams, JJ.