| People v Cruz |
| 2012 NY Slip Op 05261 [96 AD3d 693] |
| June 28, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v BeltraCruz, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Orrie A. Levy of counsel), forrespondent.
Order, Supreme Court, Bronx County (Robert G. Seewald, J.), entered February 16, 2010,which denied defendant's CPL 440.46 motion for resentencing, unanimously reversed, as amatter of discretion in the interest of justice, the motion granted, and the matter remanded forfurther proceedings consistent with this decision to include specifying and informing defendantof a proposed sentence.
The record of the resentencing proceeding does not dictate denial of resentencing onsubstantial justice grounds (see e.g.People v Milton, 86 AD3d 478 [2011]). The court denied the motion primarily on theground that defendant absconded prior to trial and remained at large for six years. However, wefind that this misconduct may have been outweighed by mitigating factors.
Although defendant is a second felony drug offender, both his predicate felony and theunderlying offense involved street level drug sales, and the remainder of his criminal history isinsignificant. Defendant has no history of violence, and his prison disciplinary record is relativelyminor. While incarcerated, defendant participated extensively in educational and trainingprograms and received recommendations for potential future employment. Thus, we remand thematter for reconsideration of defendant's motion.[*2]
We leave the length of the new sentence to theindependent discretion of Supreme Court. Concur—Mazzarelli, J.P., Catterson,Moskowitz, Manzanet-Daniels and Román, JJ. [Prior Case History: 26 Misc 3d1233(A), 2010 NY Slip Op 50362(U).]