| People v Lopez |
| 2013 NY Slip Op 00983 [103 AD3d 460] |
| February 14, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v William Lopez, Appellant. |
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Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), forrespondent.
Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on orabout May 11, 2010, which denied defendant's CPL 440.46 motion for resentencing,unanimously affirmed.
Since no material facts were contested, the resentencing court was not required toconduct an evidentiary hearing (see People v Anonymous, 85 AD3d 414 [1st Dept 2011],lv denied 18 NY3d 922 [2012]). The court complied with the resentencingstatute when defendant was "brought before the court and given an opportunity to beheard" (id. at 414). Giving a defendant an opportunity to be heard is mandatory,but the taking of testimony is not. Here, the court permitted defendant to make anextensive oral statement, and it considered written submissions from the witnesses whomdefendant had sought to call. Defendant received a full opportunity to inform the court offactors supporting his resentencing motion.
The court properly exercised its discretion in concluding that substantial justicedictated denial of resentencing, given defendant's very extensive history of felonyconvictions and parole violations, and his use of narcotics while in prison. These factorsoutweighed the favorable factors cited by defendant. Concur—Sweeny, J.P., Saxe,DeGrasse, Abdus-Salaam and Feinman, JJ.