| People v Colon |
| 2010 NY Slip Op 07561 [77 AD3d 849] |
| October 19, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gilbert Colon, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart andMichael Shollar of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.),dated January 27, 2010, which, after a hearing, denied his motion to be resentenced pursuant toCPL 440.46.
Ordered that the order is affirmed.
The defendant was indicted for various gun and drug offenses. On February 8, 2005, he wasconvicted, upon his plea of guilty, to one count of criminal sale of a controlled substance in thethird degree (a class B felony), in full satisfaction of the indictment. On May 13, 2005, he wassentenced, as a second felony offender, to an indeterminate term of imprisonment of 4½ to9 years. Subsequently, on October 27, 2009, the defendant moved to be resentenced pursuant toCPL 440.46, which extended the availability of reduced sentencing under the Drug Law ReformAct of 2004 (L 2004, ch 738) to individuals convicted of class B drug felonies (see L2004, ch 738, § 23; L 2005, ch 643, § 1).
Although the defendant was eligible for resentencing, after a hearing, the Supreme Courtdenied the motion. The Supreme Court held, in effect, that based upon the defendant's pastcriminal record, past use of firearms, previous violations of both probation and parole, and ninedisciplinary citations while incarcerated for the underlying offense, substantial justice dictatedthat the defendant's motion be denied.
The Supreme Court did not improvidently exercise its discretion in denying the defendant'smotion to be resentenced. The defendant is a second felony offender with a lengthy criminalhistory dating back to 1995, which includes three felony convictions for the sale or feloniouspossession of narcotics. He also has been found in possession of loaded handguns on threedistinct occasions and on two of these occasions he fired the guns, once at a person (himself, in asuicide attempt) and, in this case, at a car. The defendant was convicted of a narcotics felonywhile on probation, and he incurred nine disciplinary citations while incarcerated. Under thesecircumstances, the Supreme Court properly denied his motion for resentencing (see People v Winfield, 59 AD3d747 [2009]; People v Curry, 52AD3d 732 [2008]; People vFlores, 50 AD3d 1156 [2008]). Fisher, J.P., Dillon, Florio and Lott, JJ., concur.