| People v Karim |
| 2011 NY Slip Op 05297 [85 AD3d 943] |
| June 14, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AbdulKarim, 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 (Guzman, J.),dated August 20, 2010, which, after a hearing, denied his motion for resentencing pursuant toCPL 440.46 on his convictions of criminal sale of a controlled substance in the third degree,criminal possession of a controlled substance in the third degree (two counts), and criminalpossession of a controlled substance in the fourth degree, which sentence was originally imposed,upon a jury verdict, on June 23, 1988.
Ordered that the order is affirmed.
Pursuant to CPL 440.46, upon a resentencing application by a person in the custody of theDepartment of Corrections, the motion court may "consider any facts or circumstances relevantto the imposition of a new sentence which are submitted by such person or the people and may,in addition, consider the institutional record of confinement of such person . . .Upon its review of the submissions and the findings of fact made in connection with theapplication, the court shall, unless substantial justice dictates that the application should bedenied, in which event the court shall issue an order denying the application, specify and informsuch person of the term of a determinate sentence of imprisonment it would impose upon suchconviction" (L 2004, ch 738, § 23; see CPL 440.46 [3]). Inasmuch as a qualifyingmotion pursuant to CPL 440.46 "should be granted unless 'substantial justice dictates that [it]should be denied' " (People vBraithwaite, 62 AD3d 1019, 1021 [2009], quoting L 2004, ch 738, § 23),"consistent with the statutory language, case law indicates a presumption in favor of granting amotion for resentencing relief absent a showing that substantial justice dictates the denialthereof" (People v Beasley, 47AD3d 639, 641 [2008]).
The defendant is a second felony offender with a prior violent felony (see People v Flores, 50 AD3d1156, 1156 [2008]). The instant offense was committed when the defendant was on parole(see People v Rivera, 84 AD3d980 [2d Dept 2011]; People vDennis, 84 AD3d 834 [2d Dept 2011]). Moreover, notwithstanding his positiveaccomplishments while incarcerated, the defendant has committed numerous tier II and tier IIIinfractions during his time in prison (seePeople v Witkowski, 82 AD3d 913, 913 [2011]; People v Pipkin, 77 AD3d 770, 770-771 [2010]; People vFlores, 50 AD3d at 1156-1157; People v Winfield, 59 AD3d 747, 747-748 [2009]). Under thesecircumstances, the Supreme Court providently exercised its discretion in determining thatsubstantial justice dictated that the defendant's motion for resentencing pursuant to CPL 440.46should [*2]be denied. Rivera, J.P., Florio, Dickerson and Eng, JJ.,concur.