| People v Peterson |
| 2011 NY Slip Op 06952 [88 AD3d 1026] |
| October 6, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ThomasPeterson, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Peters, J.P. Appeal from an order of the County Court of Columbia County (Nichols, J.),entered May 18, 2010, which denied defendant's application for resentencing pursuant to CPL440.46.
In 1997, defendant was convicted of criminal sale of a controlled substance in the thirddegree and sentenced to 10 to 20 years in prison. In 2010, defendant made an application to beresentenced under the Drug Law Reform Act of 2009. Following a hearing, County Court denieddefendant's application. Defendant now appeals.
The Drug Law Reform Act provides, in relevant part, that eligible defendants shall beresentenced unless, upon consideration of all relevant factors, "substantial justice dictates that theapplication should be denied" (L 2004, ch 738, § 23; see CPL 440.46 [3]; People v La Porte, 53 AD3d 984,985 [2008]). County Court is vested with discretion to determine whether substantial justicedictates denial of a defendant's application for resentencing (see People v La Porte, 53AD3d at 985; People v Rivers, 43AD3d 1247, 1247 [2007], lv dismissed 9 NY3d 993 [2007]). We find that the courtprovidently exercised its discretion and did not, as defendant contends, inappropriately shift theburden of proof (see People vColon, 77 AD3d 849, 850 [2010], lv denied 15 NY3d 952 [2010]; People vLa Porte, 53 AD3d at 985; People v Rivers, 43 AD3d at 1247; compare People v Beasley, 47 AD3d639, 640 [2008]). The court appropriately considered [*2]defendant's positive institutional disciplinary record andparticipation in programs, but also noted that defendant has a significant criminal history linkedto his involvement with drugs, including a conviction of manslaughter in the first degree.Moreover, the record reflects that defendant was on parole on a drug-related offense when hecommitted the present offense. Given these circumstances, we find no basis upon which todisturb the court's determination that resentencing was not warranted (see People v Rivera, 84 AD3d 980[2011]; People v La Porte, 53 AD3d at 985; People v Rivers, 43 AD3d at 1247).
Rose, Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed.