People v Dennis

2011 NY Slip Op 03875 [84 AD3d 834]

May 3, 2011

Appellate Division, Second Department

As corrected through Wednesday, July 6, 2011

The People of the State of New York,Respondent, v Eugene Dennis, Appellant.

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

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Caroline R.Donhauser, and Terrence F. Heller of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Parker, J.),dated January 13, 2010, which denied his motion to be resentenced pursuant to CPL 440.46 onhis conviction of criminal sale of a controlled substance in the third degree, which sentence wasoriginally imposed, as a second felony offender, upon his plea of guilty, on August 8, 2002.

Ordered that the order is affirmed.

Contrary to the People's contention, while a person's status as a parole violator may berelevant in determining whether "substantial justice dictates that the application should bedenied" on the merits (L 2004, ch 738, § 23; see CPL 440.46 [3]), the defendant'sstatus as a reincarcerated parole violator did not render him ineligible to apply for resentencingpursuant to CPL 440.46 (see People v Johnson, 83 AD3d 734 [2011]; People vPhillips, 82 AD3d 1011 [2011]). However, given the defendant's lengthy criminalhistory, his history of committing crimes while on probation and parole, his record of committingprison disciplinary violations, and his lack of remorse, the Supreme Court properly determinedthat substantial justice dictated that the defendants' motion should be denied (see People v Colon, 77 AD3d 849,850 [2010]; People v Winfield, 59AD3d 747, 747-748 [2009]; Peoplev Curry, 52 AD3d 732 [2008]; People v Flores, 50 AD3d 1156, 1157 [2008]; People v Sanders, 36 AD3d 944,946-947 [2007]). Rivera, J.P., Skelos, Sgroi and Miller, JJ., concur.