| People v Browning |
| 2011 NY Slip Op 04487 [84 AD3d 1263] |
| May 24, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Timothy Browning, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and AnneGrady of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rooney,J.), dated February 22, 2010, which denied his motion to be resentenced pursuant to CPL 440.46.
Ordered that the order is affirmed.
Contrary to the People's contention, the defendant's release from imprisonment while hismotion for resentencing pursuant to CPL 440.46 was pending does not render this appealacademic (see People v Overton, 86 AD3d 4 [2011]).
However, the Supreme Court providently exercised its discretion in denying the defendant'smotion for resentencing on substantial justice grounds. The defendant was convicted of twoviolent felonies prior to the commission of the instant drug offenses, and during his incarcerationon the instant offenses, he received disciplinary tickets for 10 tier III and 20 tier II infractions,including tickets for possession of drugs and possession of a weapon. In addition, the defendant'sparole was revoked on multiple occasions for parole violations. Under these circumstances,substantial justice dictated that the motion be denied (see People v Colon, 77 AD3d 849[2010]; People v Pipkin, 77 AD3d 770 [2010]; People v Winfield, 59 AD3d 747,747-748 [2009]; People v Perez, 57 AD3d 921, 922 [2008]; People v Flores, 50AD3d 1156, 1156-1157 [2008]; People v Stamps, 50 AD3d 827, 828 [2008]). Florio,J.P., Eng, Belen and Austin, JJ., concur.