| People v Murray |
| 2011 NY Slip Op 08290 [89 AD3d 567] |
| November 17, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JoelMurray, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), forrespondent.
Order, Supreme Court, New York County (Michael R. Sonberg, J.), entered on or about June29, 2010, which denied defendant's CPL 440.46 motion for resentencing, and order, same courtand Justice, entered on or about September 15, 2010, which, upon renewal, adhered to theoriginal determination, unanimously affirmed.
On March 15, 2000 defendant was convicted, after a jury trial, of criminal sale of acontrolled substance in the third degree, a class B felony, and was sentenced to an indeterminateterm of 5 to 10 years. Defendant was found to have sold cocaine to an undercover police officeron April 27, 1999 in New York County. On May 27, 2003 this Court unanimously affirmeddefendant's conviction and sentence (305 AD2d 301 [2003], lv denied 100 NY2d 623[2003]).
In February 2010 defendant moved, pursuant to CPL 440.46, to be resentenced to adeterminate term under the 2009 Drug Law Reform Act (L 2009, ch 56) (DLRA). In a writtendecision dated June 25, 2010 and handed to counsel at a scheduled court appearance on June 29,the court denied defendant's motion.
In July 2010 defendant moved to renew his application, claiming that his medical recordsshowed mental and emotional problems, which stemmed from an organic brain injury he sufferedas a child. He argued his medical condition should be considered as a significant mitigatingfactor that contributed to his prison disciplinary record. Upon renewal, the lower court adhered toits original decision denying resentencing.
The DLRA provides that "[t]he court shall offer an opportunity for a hearing and bring theapplicant before it. The court may also conduct a hearing, if necessary, to determine whether suchperson qualifies to be resentenced or to determine any controverted issue of fact relevant to theissue of sentencing" (L 2004, ch 738, § 23). Here, defendant did not preserve his argumentthat he was denied a proper hearing on his resentencing motion (see People v Alaouie, 86 AD3d462 [2011]; People v Soler, 45AD3d 499 [2007], lv dismissed 9 NY3d 1009 [2007]), and we decline to review it inthe interest of justice. When the court handed down its decision on June 29, 2010 defendantneither asked for a hearing, nor objected on the ground that he had not been given an opportunityto be heard prior to the denial of the motion. Defendant also did not raise these specificobjections in his renewal motion.[*2]
In any event, review of the renewal motion and thesupporting medical records does not provide a basis for DLRA resentencing. Defendant has acriminal history spanning approximately 25 years, with a total of 31 convictions, five of whichare felony convictions, and one of which is a violent felony conviction. During his time in prison,defendant compiled a record of 29 disciplinary infractions, including seven tier III infractions and22 tier II infractions. These infractions involved verbally and physically abusive conduct towardprison staff, threats and harassment, use of obscene language, and, on one occasion, threateningto kill a correction officer. The most significant of defendant's infractions was his conviction ofattempted first-degree promoting prison contraband for possession of a three-inch sharpenedmetal blade, concealed in his right-leg pants cuff. Defendant was sentenced to an indeterminateprison term of 1½ to 3 years, to run consecutively with his prison sentence for theunderlying drug conviction.
In addition to a poor disciplinary history, defendant also exhibited an inability to completevarious substance abuse and behavior programs. Defendant was removed from several programsfor disciplinary reasons, and failed to complete alcohol and substance abuse programs due topoor participation or progress. Further, defendant's medical records do not raise any controvertedissues of fact relevant to his resentencing. The factual content of the records was not in dispute;rather, the only issue presented was the inference to be drawn from the medical records.
Finally, although the issue was not properly preserved in this case, we remind trial courts thatthe statute mandates that the court offer an opportunity for a hearing and that the applicant bebrought before it prior to a decision being issued on the motion (People v Figueroa, 21 AD3d 337,339 [2005], lv denied 6 NY3d 753 [2005]). Concur—Catterson, J.P., Richter,Manzanet-Daniels and RomÁn, JJ.