| People v Alvarez |
| 2012 NY Slip Op 01679 [93 AD3d 674] |
| March 6, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher Alvarez, Appellant. |
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Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, andMichael L. Brenner of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.),entered February 4, 2011, which denied his motion for resentencing pursuant to CPL 440.46 onhis conviction of criminal sale of a controlled substance in or near school grounds, whichsentence was originally imposed, upon a jury verdict, on April 23, 1998.
Ordered that the order is affirmed.
The Supreme Court providently exercised its discretion in denying the defendant's motion forresentencing pursuant to CPL 440.46. In addition to having been previously convicted of aviolent felony and having committed the instant crime while on parole, the defendant receiveddisciplinary tickets for 27 tier III and 28 tier II infractions during his approximately 12 years ofincarceration prior to making his motion for resentencing. These disciplinary tickets were issuedfor, among other things, possession of homemade weapons, drugs, and gang-related material,arson, fighting, stealing prison materials, and stalking. While the defendant's rate of receivinginfractions decreased after his first several years of incarceration, he received disciplinary ticketsfor four tier III and two tier II infractions during the two years immediately preceding hisapplication for resentencing. Under these circumstances, substantial justice dictated that themotion be denied (see People vHickman, 85 AD3d 1057 [2011]; People v Wilson, 85 AD3d 1069, 1069-1070 [2011]; People v Browning, 84 AD3d1263, 1264 [2011]; People vWitkowski, 82 AD3d 913 [2011]; People v Pipkin, 77 AD3d 770, 770-771 [2010]; People v Flores, 50 AD3d 1156,1156-1157 [2008]). Dillon, J.P., Florio, Chambers and Lott, JJ., concur.