| People v Darwin |
| 2013 NY Slip Op 00223 [102 AD3d 807] |
| January 16, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Eddie Darwin, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Rona I. Kugler of counsel; William Moran II on the brief), forrespondent.
Appeal by the defendant from an order of the Supreme Court, Queens County(Wong, J.), dated May 25, 2011, which, after a hearing, denied his motion forresentencing pursuant to CPL 440.46 on his conviction of criminal sale of a controlledsubstance in the third degree, which sentence was originally imposed, upon a juryverdict, on January 3, 1995.
Ordered that the order is affirmed.
A defendant who is eligible for resentencing pursuant to CPL 440.46 is entitled to "apresumption in favor of granting a motion for resentencing relief absent a showing thatsubstantial justice dictates the denial thereof" (People v Beasley, 47 AD3d 639, 641 [2008]; seeCPL 440.46 [3]; L 2004, ch 738, § 23). However, resentencing is not automatic,and the determination is left to the discretion of the Supreme Court (see People v Gonzalez, 96AD3d 875, 876 [2012]; People v Beasley, 47 AD3d at 641). In exercising itsdiscretion, a court may "consider any facts or circumstances relevant to the imposition ofa new sentence which are submitted by [the defendant] or the people" (L 2004, ch 738,§ 23), including the defendant's institutional record of confinement, thedefendant's prior criminal history, the severity of the current offense, whether thedefendant has shown remorse, and whether the defendant has a history of parole orprobation violations (see Peoplev Overton, 86 AD3d 4, 12 [2011]).
As the defendant correctly contends, in denying his motion for resentencing pursuantto CPL 440.46, the Supreme Court misapprehended the maximum available resentence.Specifically, the court indicated that the maximum available resentence was adeterminate term of imprisonment of 12 years, with three years of postrelease supervision(hereinafter PRS). However, prior to his underlying conviction of criminal sale of acontrolled substance in the third degree, the defendant was convicted of assault in thesecond degree. If the Supreme Court had adjudicated the defendant a second felony drugoffender whose prior felony conviction was for a violent felony, he would have facedresentencing to a determinate term of imprisonment of between 6 and 15 years, withthree years [*2]of PRS (see Penal Law §70.70 [4] [a]; People vDais, 19 NY3d 335, 339 [2012]).
Nevertheless, the Supreme Court's error regarding the maximum available resentencedoes not warrant reversal. Considering all of the circumstances relevant to thedefendant's motion, including his several parole violations and disciplinary infractionscommitted while confined, the Supreme Court did not improvidently exercise itsdiscretion in determining that substantial justice dictated that the defendant's motion forresentencing pursuant to CPL 440.46 should be denied (see e.g. People vGonzalez, 96 AD3d at 876; People v Rivera, 84 AD3d 980, 980-981 [2011]; People v Witkowski, 82AD3d 913 [2011]). Rivera, J.P., Balkin, Leventhal and Hinds-Radix, JJ., concur.