| People v Avila |
| 2011 NY Slip Op 04482 [84 AD3d 1259] |
| May 24, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v FelixAvila, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Rossof counsel; Tiffany L. Henry on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (DiMango, J.),dated March 19, 2010, which, after a hearing, denied his motion to be resentenced pursuant toCPL 440.46 on his conviction of criminal sale of a controlled substance in the third degree,which sentence was originally imposed, upon his plea of guilty, on December 18, 2001.
Ordered that the order is affirmed, without costs.
The Supreme Court correctly determined that the defendant's status as a parole violator didnot render him ineligible to apply for resentencing pursuant to the Drug Law Reform Act of 2009(hereinafter the 2009 DLRA) (see CPL 440.46; People v Phillips, 82 AD3d 1011[2011], lv granted 16 NY3d 834 [2011]). However, contrary to the defendant'scontention, the Supreme Court providently exercised its discretion in denying his motion forresentencing.
A motion for resentencing pursuant to the 2009 DLRA "should be granted unless 'substantialjustice dictates that [it] should be denied' " (People v Braithwaite, 62 AD3d 1019, 1021[2009], quoting L 2004, ch 738, § 23; see CPL 440.46 [3] [incorporating L 2004,ch 738, § 23]; People v Beasley, 47 AD3d 639, 641 [2008]). In making itsdetermination, a court may consider any relevant facts, including, but not limited to, thedefendant's institutional disciplinary record and his willingness to participate in treatment whileincarcerated (see L 2004, ch 738, § 23; CPL 440.46 [3]; People v Vega, 40AD3d 1020 [2007]). Moreover, "a person's status as a parole violator may be relevant indetermining whether substantial justice dictates that the application should be denied on themerits" (People v Phillips, 82 AD3d at 1012 [internal quotation marks omitted]).
The defendant was sentenced as a second felony offender and has an extensive, continuouscriminal history dating back to 1992, including an out-of-state felony conviction. With regard tothe instant offense, after serving the minimum term of his indeterminate sentence, he wasreturned to prison on four occasions for violations of parole, three of which involved arrests fornew offenses he committed while on parole. On the third such occasion, the defendant violated acondition of parole by failing to report to an outpatient substance abuse treatment program, andtwo months later, he was arrested and subsequently [*2]convictedof petit larceny. In addition, the defendant's institutional record included four tier II infractionsand one tier III infraction for drug use. Under all the circumstances presented in the record,substantial justice dictated that the motion be denied (see People v Witkowski, 82 AD3d913 [2011]; People v Curry, 52 AD3d 732 [2008]; People v Vega, 40 AD3d at1020). Prudenti, P.J., Angiolillo, Dickerson and Roman, JJ., concur. [Prior Case History: 27Misc 3d 974.]