| People v Alaouie |
| 2011 NY Slip Op 05940 [86 AD3d 462] |
| July 14, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Mohammed Alaouie, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), forrespondent.
Order, Supreme Court, New York County (Eduardo PadrÓ, J.), entered March 4, 2010,which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.
The court properly exercised its discretion in determining that substantial justice dictateddenial of the application. Regardless of whether it sometimes used terminology other than"dictated," the court expressly relied on the applicable standard (see People v Marti, 81 AD3d 418[2011]), and it properly considered appropriate criteria. Uncontested information aboutdefendant's very serious pattern of violent behavior while incarcerated dictated denial of hismotion (see e.g. People vFlores, 50 AD3d 1156 [2008], lv dismissed 10 NY3d 934 [2008]).
When the court announced that it was deciding the motion on the parties' writtensubmissions, defendant did not object or identify any factual disputes requiring an evidentiaryhearing. Accordingly, defendant did not preserve his argument that the court conducted aninadequate hearing on his motion (seePeople v Soler, 45 AD3d 499 [2007]), and we decline to review it in the interest ofjustice. As an alternative holding, we also reject it on the merits. While the better practice wouldbe to expressly offer defendant an opportunity to be heard, there [*2]was no dispute as to the primary facts that led the court to denyresentencing (see People vRobinson, 45 AD3d 442 [2007], lv dismissed 10 NY3d 815 [2008]; People v Burgos, 44 AD3d 387,387 [2007], lv dismissed 9 NY3d 990 [2007]). Concur—Andrias, J.P., Friedman,Sweeny, Renwick and RomÁn, JJ.