| People v Cephas |
| 2011 NY Slip Op 09198 [90 AD3d 557] |
| Dcmbr 20, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Herbert Cephas, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Caleb Kruckenberg), forrespondent.
Order, Supreme Court, New York County (Lewis Bart Stone, J.), entered on or about May19, 2011, which denied defendant's CPL 440.46 motion for resentencing, unanimously reversed,as a matter of discretion in the interest of justice, the motion granted, the order replaced by anorder specifying and informing defendant of a proposed sentence of 12 years plus three years'postrelease supervision, and the matter remanded for further proceedings.
Substantial justice does not dictate denial of resentencing, and we exercise our discretion tospecify an appropriate resentence (see e.g. People v Milton, 86 AD3d 478 [2011]). It is undisputed that duringdefendant's imprisonment on the underlying 2003 conviction, he has been an exemplary prisoner,and has completed several work programs and substance abuse treatment programs.
The court denied the motion primarily on the basis of defendant's long criminal history. Thecourt noted that defendant had completed programs during his prior incarcerations, yet had stillrelapsed into drugs and a life of crime.
However, in addition to completing the work and substance abuse programs, defendant hasreceived highly favorable evaluations from corrections officials, including a social worker.Moreover, defendant has been accepted into a residential treatment program with a two-yearcommitment, providing a level of community drug treatment support that he has never hadbefore. Under the circumstances presented, the positive factors cited by defendant outweighedthe extent of his criminal history.
The People claim that the court erred, in several respects, when it found defendant statutorilyeligible for resentencing. However, the determination of eligibility did not "adversely affect[ ] theappellant" (CPL 470.15 [1]). Therefore, the People's arguments concerning eligibility are notcognizable on this appeal (see People vConcepcion, 17 NY3d 192 [2011]; People v LaFontaine, 92 NY2d 470 [1998]).Concur—Saxe, J.P., Catterson, Moskowitz, Acosta and Renwick, JJ.