People v Flores

2008 NY Slip Op 04105 [50 AD3d 1156]

April 29, 2008

Appellate Division, Second Department

As corrected through Wednesday, June 18, 2008

The People of the State of New York,Respondent, v Anthorin Flores, Appellant.

—[*1]Lynn W. L. Fahey, New York, N.Y. (Michelle Mogal of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, andHelen M. Polyzos of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Lott, J.), datedJuly 18, 2006, which, after a hearing, denied his application to be resentenced pursuant to theDrug Law Reform Act of 2005 (L 2005, ch 643).

Ordered that the order is affirmed.

The Drug Law Reform Act of 2004 (L 2004, ch 738; hereinafter the 2004 DLRA) establisheda new sentencing structure for laws which were enacted in 1973 and were commonly referred toas the Rockefeller Drug Laws. The 2004 DLRA was effective January 13, 2005, and was to beapplied prospectively (L 2004, ch 738, § 41 [d-1]). A subsequent enactment of theLegislature, effective October 29, 2005, retroactively extended the revised sentencing provisionsof the 2004 DLRA to certain qualified inmates who had been previously convicted of class A-IIfelonies (L 2005, ch 643, § 1; hereinafter the 2005 DLRA).

The Supreme Court, after a hearing, providently exercised its discretion in denying thedefendant's application to be resentenced pursuant to the 2005 DLRA. The defendant is a secondfelony offender with a prior criminal history dating back to 1994, including a prior violent felonyconviction (see People v Alvarado,48 AD3d 329 [2008]; People vSanders, 36 AD3d 944, 946-947 [2007]). Moreover, despite the defendant's positiveachievements while incarcerated, he also has a poor prison disciplinary record (see People v Rivers, 43 AD3d1247, 1248 [2007]; People vVega, 40 AD3d 1020, 1020-1021 [2007]).[*2]

The 2005 DLRA expressly provides that the court mayconsider the institutional record of confinement of a person seeking to be resentenced thereunder(see Drug Law Reform Act, L 2005, ch 643, § 1; People v Vega, 40 AD3dat 1020-1021; People v Sanders, 36AD3d 944 [2007]; People vQuinones, 11 Misc 3d 582, 600 n 15 [2005]). Here, during approximately51/3 years of incarceration, the defendant received six disciplinary tickets,including one for alcohol use, a Tier 3 infraction, for which he was confined to a special housingunit for 60 days (see 7 NYCRR 280.2 [b] [2] [xii]). The defendant also receiveddisciplinary sanctions which totaled 60 days of keeplock time for five other disciplinaryinfractions, including violation of rules 104.11 (violent conduct), 104.13 (creating a disturbance),and 100.13 (fighting) (see 7 NYCRR 280.2 [b] [3]).

Accordingly, under these circumstances, substantial justice dictated that the application bedenied (see L 2005, ch 643, § 1).

Contrary to the defendant's contention, the Supreme Court did not determine that he did notmeet the "eligibility requirements" of Correction Law § 803 (1) (d). Fisher, J.P., Miller,Carni and Dickerson, JJ., concur.