| People v Franklin |
| 2012 NY Slip Op 09083 [101 AD3d 1148] |
| December 26, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lashawn Franklin, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Gretchen Robinson of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Latella, J.),dated June 22, 2011, which, after a hearing, denied his motion to be resentenced pursuant to CPL440.46 on his conviction of criminal sale of a controlled substance in the third degree, whichsentence was originally imposed, upon his plea of guilty, on December 9, 2002.
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 vGonzalez, 96 AD3d 875, 876 [2012], quoting People v Beasley, 47 AD3d 639, 641 [2008]; see CPL440.46 [3]; L 2004, ch 738, § 23). "However, resentencing is not automatic, and thedetermination is left to the discretion of the Supreme Court" (People v Gonzalez, 96AD3d at 876; see People v Beasley, 47 AD3d at 641). In exercising its discretion, a courtmay "consider any facts or circumstances relevant to the imposition of a new sentence which aresubmitted by [the defendant] or the people" (L 2004, ch 738, § 23), including thedefendant's institutional record of confinement, the defendant's prior criminal history, the severityof the current offense, whether the defendant has shown remorse, and whether the defendant hasa history of parole or probation violations (see People v Overton, 86 AD3d 4, 12 [2011]; People v Avila, 84 AD3d 1259[2011]). A defendant's status as a reincarcerated parole violator does not render him or herineligible for relief pursuant to CPL 440.46 (see People v Paulin, 17 NY3d 238, 241-242 [2011]), but "may berelevant in determining whether substantial justice dictates that the application should be deniedon the merits" (People v Phillips, 82AD3d 1011, 1012 [2011] [internal quotation marks omitted]; see People v Brown, 84 AD3d1262, 1263 [2011]).
Here, the defendant filed his motion to be resentenced after being reincarcerated on a paroleviolation stemming from his conviction of a narcotics felony committed while he was out onparole in connection with the instant offense. In addition to the instant narcotics felony, and thenarcotics felony committed while on parole, the defendant had three prior felony convictions fornarcotics offenses dating back to 1994. Each successive narcotics felony was committed whilethe defendant was on parole. The defendant's institutional disciplinary record included five tier II[*2]infractions and two tier III infractions involving violentconduct, and he was removed from programs in prison on several occasions for disciplinaryreasons. Although the defendant successfully completed an electrical trades program toward theend of his incarceration, and also completed substance abuse and anger management programs,the evidence of rehabilitation did not outweigh the seriousness of the instant offense and hislengthy criminal history, including the pattern of successive reoffense while on parole. Under thecircumstances, substantial justice dictated that the motion be denied (see People vGonzalez, 96 AD3d at 876; People v Avila, 84 AD3d at 1259; People v Rivera, 84 AD3d 980,981 [2011]). Eng, P.J., Angiolillo, Sgroi and Hinds-Radix, JJ., concur.