| People v Lattimore |
| 2012 NY Slip Op 01509 [92 AD3d 617] |
| February 28, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v DavidLattimore, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Caleb Kruckenberg of counsel), forrespondent.
Order, Supreme Court, New York County (Ronald A. Zweibel, J.), entered on or about May21, 2010, 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 two years plus 1½years' 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]). Under the circumstancespresented, the mitigating factors cited by defendant were not outweighed by the extent of hiscriminal history.
In 2006, defendant received a prison sentence for the underlying 2001 offense after he failedto complete the drug treatment alternative program to which he was originally diverted.However, defendant stayed in treatment for two and one-half years, successfully completing theresidential phase of the treatment program, and his single relapse was satisfactorily explained.
During defendant's imprisonment on the underlying offense he had an exemplary record, hefinally completed substance abuse treatment as well as several work programs, he counseledother inmates, and he received positive letters of recommendations from corrections officials.[*2]Although defendant has a long criminal history, his lastviolent felonies occurred over 40 years ago and he has no record of drug trafficking other than atthe lowest level. Concur—Mazzarelli, J.P., Andrias, Catterson, Abdus-Salaam andManzanet-Daniels, JJ.