| People v Cabrera |
| 2013 NY Slip Op 00934 [103 AD3d 748] |
| February 13, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Perciles Cabrera, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall,and Terrence F. Heller of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(Guzman, J.), dated July 2, 2010, which, after a hearing, denied his motion to beresentenced 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 May 16, 1996.
Ordered that the order is affirmed.
As the People correctly concede, the Supreme Court erred in concluding that thedefendant was ineligible for resentencing under CPL 440.46 by virtue of his paroleviolation (see People vPaulin, 17 NY3d 238, 242 [2011]).
However, in light of the defendant's extensive criminal history, pattern of committingcrimes while on parole, and institutional record, which included 22 infractions, 8 ofwhich were tier III infractions, the Supreme Court properly determined that, in any event,substantial justice dictated the denial of the defendant's motion for resentencing pursuantto CPL 440.46 (see People vFranklin, 101 AD3d 1148 [2012]; People v Barnes, 95 AD3d 1029, 1030 [2012]; People v Alvarez, 93 AD3d674 [2012]; People vMyles, 90 AD3d 952, 954 [2011]). The evidence of the defendant'srehabilitation does not outweigh his criminal history, institutional record, and pattern ofsuccessive reoffenses while on parole (see People v Franklin, 101 AD3d 1148 [2012]; People v Curry, 52 AD3d732 [2008]). Rivera, J.P., Hall, Roman and Miller, JJ., concur.