| People v Gonzalez |
| 2012 NY Slip Op 04776 [96 AD3d 875] |
| June 13, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v George Gonzalez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Tina Grillo of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Mullings, J.),dated September 30, 2010, which, after a hearing, denied his motion for resentencing pursuant toCPL 440.46 on his conviction of criminal possession of a controlled substance in the thirddegree, which sentence was originally imposed, upon his plea of guilty, on September 5, 2008.
Ordered that the order is affirmed.
A defendant who is eligible for resentencing pursuant to CPL 440.46 enjoys "a presumptionin favor of granting a motion for resentencing relief absent a showing that substantial justicedictates the denial thereof" (People vBeasley, 47 AD3d 639, 641 [2008]; see CPL 440.46 [3]; L 2004, ch 738,§ 23). However, resentencing is not automatic, and the determination is left to thediscretion of the Supreme Court (see People v Beasley, 47 AD3d at 641; People v Vega, 40 AD3d 1020,1020-1021 [2007]). In exercising its discretion, a court may "consider any facts or circumstancesrelevant to the imposition of a new sentence which are submitted by [the defendant] or thepeople" (L 2004, ch 738, § 23), including the defendant's institutional record ofconfinement, the defendant's prior criminal history, the severity of the current offense, whetherthe defendant has shown remorse, and whether the defendant has a history of parole or probationviolations (see People v Overton, 86AD3d 4, 12 [2011]).
Here, the Supreme Court did not improvidently exercise its discretion in denying thedefendant's motion for resentencing pursuant to CPL 440.46. Considering the seriousness of theinstant offense, the defendant's criminal history, which includes nine other felony convictionsdating back to 1980, his prior parole and probation violations, and the number of disciplinaryinfractions committed while confined, substantial justice dictated that his motion be denied (see People v Rivera, 84 AD3d 980[2011]; People v Witkowski, 82AD3d 913 [2011]; People vColon, 77 AD3d 849 [2010]). Florio, J.P., Balkin, Chambers and Cohen, JJ., concur.