| People v Wilson |
| 2011 NY Slip Op 05539 [85 AD3d 1069] |
| June 21, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DarrylWilson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Rossof counsel; Todd L. Miller on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Guzman, J.),dated March 26, 2010, which denied, without a hearing, 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 August 29, 2002.
Ordered that the order is affirmed.
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in denying his motion for resentencing on substantial justice grounds (see CPL440.46 [3]; L 2004, ch 738, § 23; People v Pipkin, 77 AD3d 770 [2010]). While on release fromparole, stemming from a conviction of attempted robbery in the third degree, the defendantcommitted the drug offense that is the subject of this appeal. The defendant was afforded theopportunity to avoid prison time by having his plea of guilty to the drug offense vacated, and thecharge dismissed, if he completed a drug treatment program. The defendant, however, neverreported to the drug treatment program. Instead, after being released on his own recognizance,the defendant absconded to Oneida County, where he was later arrested on a charge of forgery inthe second degree. The defendant pleaded guilty to that charge, and was returned to KingsCounty for sentencing on the instant drug offense, receiving an indeterminate term ofimprisonment of 5 to 10 years. As of the date that the defendant submitted the instant motion forresentencing, he had been issued 39 prison disciplinary tickets during the less than 9 years he hadbeen incarcerated, including tickets for possession of a weapon and gang activity. Under thesecircumstances, substantial justice warrants the denial of the motion (see People v Rivera, 84 AD3d 980[2011]; People v Witkowski, 82AD3d 913 [2011]; People vColon, 77 AD3d 849 [2010]; People v Pipkin, 77 AD3d at 770-771; People v Winfield, 59 AD3d 747,747-748 [2009]; cf. People vBeasley, 47 AD3d 639, 641 [2008]) and we, thus, decline to disturb the Supreme Court'sdetermination. Mastro, J.P., Florio, Belen and Chambers, JJ., concur.[*2]