| People v Barnes |
| 2012 NY Slip Op 03657 [95 AD3d 1029] |
| May 8, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Barnes, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, andMaria Park of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Guzman, J.),dated March 12, 2010, which, after a hearing, denied his motion to be resentenced pursuant toCPL 440.46 on his conviction of criminal sale of a controlled substance in the third degree,which sentence was originally imposed, upon his plea of guilty, on May 24, 2002.
Ordered that the order is affirmed.
As correctly conceded by the People, the Supreme Court erroneously concluded that thedefendant's status as a reincarcerated parole violator rendered him ineligible to apply forresentencing pursuant to CPL 440.46 (see People v Paulin, 17 NY3d 238, 241-242 [2011]). However, inlight of the defendant's extensive criminal history, his history of committing crimes while onparole, and his institutional record which included 11 infractions, the Supreme Court properlydetermined that, in any event, substantial justice dictated that the defendant's motion should bedenied (see People v Karim, 85AD3d 943, 944 [2011]; People vDennis, 84 AD3d 834, 835 [2011]; People v Colon, 77 AD3d 849, 850 [2010]; People v Winfield, 59 AD3d 747,747-748 [2009]; People v Flores, 50AD3d 1156, 1157 [2008]). Rivera, J.P., Dickerson, Leventhal and Cohen, JJ., concur.