| People v Rodriguez |
| 2011 NY Slip Op 02729 [83 AD3d 419] |
| April 5, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JoseRodriguez, Also Known as Juan Rivera Escalante, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi-Levi of counsel), forrespondent.
Order, Supreme Court, New York County (Patricia M. NuÑez, J.), entered May 13,2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.
The court considered the appropriate factors and properly exercised its discretion inconcluding that substantial justice dictated a denial of resentencing. The underlying drug crimeinvolved a large quantity of cocaine. Defendant was indicted for first-degree criminal possessionof a controlled substance, but was permitted to plead guilty to third-degree possession andreleased on bail pending sentencing. Defendant absconded, remained outside this jurisdiction formany years, and was convicted of a new drug felony, all of which was in violation of his pleaagreement. In addition, defendant had absconded while awaiting sentencing on his conviction inBronx County of criminal possession of a weapon in the third degree. Under the circumstances,evidence of defendant's rehabilitation while incarcerated was outweighed by the factorsmilitating against resentencing (seePeople v Marte, 44 AD3d 442 [2007], lv dismissed 9 NY3d 991 [2007]; see also People v Aguirre, 47 AD3d489 [2008], lv dismissed 10 NY3d 761 [2008]). Concur—Mazzarelli, J.P.,Sweeny, Renwick, Richter and Manzanet-Daniels, JJ.