| People v Nunziata |
| 2011 NY Slip Op 06143 [87 AD3d 555] |
| August 2, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v William Nunziata, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel; PhilipBranigan on the brief), for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Gazzillo, J.),dated July 20, 2009, which, after a hearing, denied his motion for resentencing pursuant to theDrug Law Reform Act of 2004 (L 2004, ch 738, § 23), on his conviction of criminalpossession of a controlled substance in the first degree, which sentence was originally imposed,upon a jury verdict, on May 14, 2002.
Ordered that the order is reversed, on the law and in the exercise of discretion, the motion isgranted, and the matter is remitted to the County Court, Suffolk County, for further proceedingsin accordance herewith.
Contrary to the County Court's determination, substantial justice did not dictate the denial ofthe defendant's motion for resentencing pursuant to the Drug Law Reform Act of 2004 (L 2004,ch 738, § 23). The defendant has an exemplary prison record, with no disciplinary historyin the approximately eight years that he spent incarcerated prior to the hearing on his motion forresentencing. The defendant also earned a GED certificate and successfully completed avocational training program and numerous bible study classes while incarcerated, while receivingexcellent progress reports in these programs. In light of the presumption in favor of resentencing,the defendant's rehabilitative efforts and exemplary prison record, and other factors, including thedefendant's advanced age and supportive family, outweighed the considerations upon which theCounty Court relied in denying the defendant's motion (see People v Hallman, 84 AD3d 1266 [2011]; People v Beasley, 47 AD3d 639,641 [2008]).
Accordingly, the defendant's motion is granted and the matter is remitted to the CountyCourt, Suffolk County, for further proceedings in accordance with the applicable resentencingprocedure (see L 2004, ch 738, § 23). Skelos, J.P., Balkin, Leventhal and Lott, JJ.,concur.