| People v Hallman |
| 2011 NY Slip Op 04493 [84 AD3d 1266] |
| May 24, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Hallman, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Danielle Hartman of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Kron, J.),dated April 5, 2010, which, after a hearing, denied his motion for resentencing pursuant to CPL440.46 on his conviction of criminal possession of a controlled substance in the third degree,which sentence was originally imposed, upon his plea of guilty, on April 8, 2004.
Ordered that the order is reversed, on the law and as a matter of discretion in the interest ofjustice, the motion is granted, and the matter is remitted to the Supreme Court, Queens County,for further proceedings in accordance herewith, before a different Justice.
Since a motion pursuant to CPL 440.46 "should be granted unless 'substantial justice dictatesthat [it] should be denied' " (People v Braithwaite, 62 AD3d 1019, 1021 [2009], quotingL 2004, ch 738, § 23), "consistent with the statutory language, case law indicates apresumption in favor of granting a motion for resentencing relief absent a showing thatsubstantial justice dictates the denial thereof" (People v Beasley, 47 AD3d 639, 641[2008]).
Here, it is undisputed that the defendant was eligible to apply for resentencing pursuant toCPL 440.46. Upon review of all the relevant circumstances, and as a matter of discretion in theinterest of justice, we conclude that, contrary to the Supreme Court's determination, substantialjustice did not dictate the denial of the defendant's motion. The defendant has an exemplaryprison record, having incurred no disciplinary infractions in the time he has spent incarcerated(compare People v Witkowski, 82 AD3d 913 [2011]; People v Colon, 77 AD3d849, 850 [2010]; People v Pipkin, 77 AD3d 770, 770-771 [2010]; People vWinfield, 59 AD3d 747, 747-748 [2009]). Additionally, the defendant has successfullycompleted a number of programs and vocational training pursuits while imprisoned (seegenerally CPL 440.46 [3]). Particularly in light of the presumption in favor of resentencing(see People v Beasley, 47 AD3d at 641), the defendant's rehabilitative efforts andexemplary prison record outweighed the considerations upon which the Supreme Court relied indenying the defendant's motion. We note specifically that, in denying the defendant's motion, theSupreme Court emphasized, among other things, that the "underlying facts and circumstancessurrounding this case are violent in nature." However, the evidence in the record to support [*2]this position consisted of an indictment which, in addition to thenonviolent count to which the defendant pleaded guilty, contained charges involving violentcrimes. However, the People ultimately chose not to pursue these counts, and the defendantpleaded guilty only to criminal possession of a controlled substance in the third degree. ThePeople presented no other evidence to substantiate the position that the defendant committedviolent acts, and the defendant was not prosecuted for or convicted of committing such acts.Under the circumstances presented here, substantial justice did not dictate the denial of thedefendant's motion.
Accordingly, the defendant's motion is granted and the matter is remitted to the SupremeCourt, Queens County, for further proceedings in accordance with the applicable resentencingprocedure (see CPL 440.46 [3]; L 2004, ch 738, § 23). Moreover, in light of certaincomments made on the record by the Supreme Court, which appear to reflect a predisposition todeny the defendant's motion without regard to the evidence presented at the hearing, we remit thematter to a different Justice. Skelos, J.P., Dickerson, Hall and Sgroi, JJ., concur.