| People v Alea |
| 2007 NY Slip Op 10054 [46 AD3d 398] |
| December 20, 2007 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JoseAlea, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Britta Gilmore of counsel), forrespondent.
Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or aboutSeptember 8, 2006, which denied defendant's motion to be resentenced pursuant to the 2005Drug Law Reform Act (DLRA), unanimously affirmed.
The court properly found that "substantial justice" dictated that defendant's application bedenied (L 2005, ch 643, § 1). Defendant was a member of a large-scale narcotics andfirearms selling organization, who was personally involved in a number of sales to undercoverofficers, and we find no basis for disturbing the court's determination that, in view of theseriousness of defendant's crimes, resentencing was inappropriate (see e.g. People v Vasquez, 41 AD3d 111[2007], lv dismissed 9 NY3d 870 [2007]).
Defendant did not preserve his challenge to the constitutionality of the resentencingprocedure and we decline to review it in the interest of justice. Were we to review this claim, wewould find it without merit. Defendant asserts that the denial of resentencing was based onfactual findings, as to which he had a constitutional right to a jury trial. However, defendant'soriginal sentence was based solely on his guilty plea and his prior convictions, and anyresentencing under the DLRA would not enhance his sentence but would reduce it (compareApprendi v New Jersey, 530 US 466 [2000]). In any event, consideration of "any facts orcircumstances relevant to the imposition of a new sentence," including a defendant's"institutional record of confinement," as authorized by the statute (L 2005, ch 643, § 1), is[*2]indistinguishable from the court's traditional role inconsidering relevant factors for the purpose of choosing an appropriate sentence within thestatutory range (cf. People v Rosen, 96 NY2d 329, 335 [2001]).Concur—Lippman, P.J., Marlow, Williams and Gonzalez, JJ.