| People v Hickman |
| 2011 NY Slip Op 05523 [85 AD3d 1057] |
| June 21, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v TonyHickman, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Diane R. Eisner, andMarie John-Drigo of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (J. Goldberg, J.),dated December 11, 2009, which denied his motion to be resentenced pursuant to CPL 440.46 onhis conviction of criminal possession of a controlled substance in the third degree (two counts)and unlawful possession of marijuana, which sentence was originally imposed, upon a juryverdict, on June 2, 2004.
Ordered that the order is affirmed.
The Supreme Court providently exercised its discretion in denying the defendant's motion forresentencing pursuant to CPL 440.46. The defendant's criminal history includes a conviction forthe violent felony offense of attempted robbery in the second degree, and convictions of robberyin the third degree and assault in the third degree. The defendant also has a history of violatingprobation, and the instant drug felonies arise from his possession of a significant quantity ofcocaine. Further, the defendant absconded during the trial in the instant case, and remained atliberty for over five months until he was involuntarily returned on a warrant. While the defendantsubmitted evidence that he has made rehabilitative efforts during his incarceration, hisinstitutional record is marred by a serious tier III disciplinary infraction arising from thediscovery of a sharpened metal rod known as a "shank" hidden inside the padding of his mattress.Under these circumstances, the Supreme Court properly concluded that substantial justicedictated the denial of resentencing (seePeople v Rivera, 84 AD3d 980 [2011]; People v Dennis, 84 AD3d 834 [2011]; People v Rodriguez, 83 AD3d 419[2011]; People v Colon, 77 AD3d849, 850 [2010]; People vPerez, 57 AD3d 921, 922 [2008]; People v Curry, 52 AD3d 732 [2008]; People v Ciriaco, 46 AD3d 374,375 [2007]; People v Sanders, 36AD3d 944, 946-947 [2007]). Rivera, J.P., Eng, Roman and Miller, JJ., concur.