People v Spann

2011 NY Slip Op 07499 [88 AD3d 597]

October 25, 2011

Appellate Division, First Department

As corrected through Wednesday, December 7, 2011

The People of the State of New York,Respondent, v Gerard Spann, Appellant.

—[*1]Steven Banks, The Legal Aid Society, New York (Paul Wiener of counsel), forappellant.

Cyrus R. Vance, Jr., District Attorney, New York (Sean T. Masson of counsel), forrespondent.

Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or aboutFebruary 5, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimouslyaffirmed.

The court properly exercised its discretion in determining that substantial justice dictateddenial of the motion (see generallyPeople v Gonzalez, 29 AD3d 400 [2006], lv denied 7 NY3d 867 [2006]).Defendant's history of recidivism and absconding outweighed the positive factors cited bydefendant, including his prison record (see e.g. People v Soler, 45 AD3d 499 [2007], lv dismissed9 NY3d 1009 [2007]). Concur—Tom, J.P., Saxe, Moskowitz, DeGrasse andAbdus-Salaam, JJ.