| People v Herrera |
| 2008 NY Slip Op 07008 [54 AD3d 873] |
| September 16, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Carlos Herrera, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera and Edward A.Bannan of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Braslow, J.),dated June 20, 2007, which, after a hearing, denied his application to be resentenced under theDrug Law Reform Act of 2004 (L 2004, ch 738, § 23), and the Drug Law Reform Act of2005 (L 2005, ch 643, § 1).
Ordered that the order is affirmed.
In 1984 the defendant was convicted, following a jury trial, of criminal sale of a controlledsubstance in the first degree, a class A-I felony, and conspiracy in the second degree. Theconvictions arose from the defendant's involvement in bringing more than 50 pounds of cocainefrom Colombia, South America, to New York. The defendant continued his illegal drug activitieswhile he was incarcerated following his 1984 conviction. In 1988 he was convicted, upon hisplea of guilty, of criminal sale of a controlled substance in the second degree, a class A-II felony,and in 1993 he was convicted in the United States District Court for the Western District of NewYork, upon his plea of guilty, of conspiracy to distribute and possess five kilograms of cocaine.
In 2006 the defendant applied for resentencing under the Drug Law Reform Act of 2004,[*2]with respect to his 1984 conviction of the A-I felony(see L 2004, ch 738, § 23), and under the Drug Law Reform Act of 2005, withrespect to his 1988 conviction of the A-II felony (see L 2005, ch 643, § 1). ThePeople opposed the application. After a hearing, the County Court denied resentencing. Weaffirm.
The County Court providently exercised its discretion in denying the defendant's applicationto be resentenced. The defendant was a large-scale drug dealer whose institutional record ofconfinement included additional serious drug-related convictions. Based upon the recordpresented, "substantial justice dictate[d] that the application should be denied" (L 2004, ch 738,§ 23; L 2005, ch 643, § 1; People v Stamps, 50 AD3d 827 [2008], lv dismissed 10NY3d 939 [2008]; People vAguirre, 47 AD3d 489 [2008]; People v Ayala, 43 AD3d 800 [2007]). Fisher, J.P., Miller, Balkinand Belen, JJ., concur.