| People v Witkowski |
| 2011 NY Slip Op 01873 [82 AD3d 913] |
| March 8, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v GlenWitkowski, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Rona I. Kruger of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Grosso, J.),dated March 12, 2010, which, after a hearing, denied his motion for resentencing pursuant toCPL 440.46, on his conviction of criminal possession of a controlled substance in the thirddegree, which sentence was originally imposed, upon his plea of guilty, on October 14, 2004.
Ordered that the order is affirmed.
The defendant was convicted, upon his plea of guilty, of criminal possession of a controlledsubstance in the third degree (see Penal Law § 220.16), based on an offensecommitted in 2003, and was sentenced in October 2004 to an indeterminate term of 6 to 12 yearsof imprisonment. In January 2010 the defendant moved to be resentenced pursuant to CPL440.46, which extends to certain eligible individuals in the custody of the Department ofCorrectional Services who were convicted of a class B felony offense defined in Penal Lawarticle 220 committed prior to January 13, 2005, the opportunity to seek a resentence inaccordance with the resentencing provisions of the Drug Law Reform Act of 2004 (seeCPL 440.46 [1], [3]; L 2004, ch 738, § 23). The Supreme Court denied the defendant'smotion.
The defendant had an extensive criminal history dating back to 1996, and the instant offensewas committed two months after he was released on parole. Moreover, during the defendant'sincarceration, he has committed numerous tier III and tier II infractions, including, among otherthings, carrying a concealed razor, fighting with fellow inmates, setting another inmate's bed onfire, and possession of gang-related materials. Under these circumstances, the Supreme Courtprovidently exercised its discretion in denying the defendant's motion (see CPL 440.46[3]; L 2004, ch 738, § 23; Peoplev Winfield, 59 AD3d 747, 748 [2009]; People v Perez, 57 AD3d 921, 922 [2008]; People v Flores, 50 AD3d 1156[2008]; People v Vega, 40 AD3d1020, 1020-1021 [2007]; People vSanders, 36 AD3d 944 [2007]). Prudenti, P.J., Eng, Belen and Sgroi, JJ., concur.