| People v Ford |
| 2013 NY Slip Op 01023 [103 AD3d 492] |
| February 19, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Christopher Ford, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (R. Vance, Jr., District Attorney,New York (Jared Wolkowitz of counsel), for respondent.
Order, Supreme Court, New York County (Laura A. Ward, J.), entered on or aboutJanuary 6, 2010, which denied defendant's CPL 440.46 motion for resentencing,unanimously affirmed.
The court concluded that substantial justice dictated the denial of the motion (see generally People vGonzalez, 29 AD3d 400 [1st Dept 2006], lv denied 7 NY3d 867[2006]). We have consistently held that, in determining whether substantial justicedictates the denial of a resentencing application, it is proper to consider the totality of thecircumstances, including the nature and seriousness of the offense for which thedefendant was sentenced (seee.g. People v Rodriguez, 54 AD3d 600 [1st Dept 2008]), the defendant'sconduct post-sentence (seePeople v Batista, 45 AD3d 396 [1st Dept 2007]), and his or her criminal andinstitutional record (see Peoplev Anonymous, 98 AD3d 913 [1st Dept 2012], lv denied 20 NY3d 985[2012]).
Defendant had amassed an extensive criminal record in both New York and NewJersey dating back to 1987. While it is true that many of his convictions involvedrelatively minor misdemeanor property and drug possession crimes, a number of themwere the result of pleas to misdemeanors in satisfaction of felony charges. Moreover,defendant's criminal history reveals his use of various aliases and dates of birth, as wellas a number of convictions for the sale of drugs, and not mere possession. His history ofrecidivism, particularly his three parole violations for the commission of crimes while onparole, were all appropriate factors for the court to consider. Although defendantattempts to minimize the sale of cocaine to an undercover police officer in the instantcase, the record reveals that he had on his person a greater amount of drugs than he soldto the officer. It is clear from these facts, as well as defendant's prior convictions forfelony drug sales, that this sale was not an isolated incident.
The court also considered the evidence of defendant's rehabilitation while in prison(see People v Davis, 51AD3d 573 [1st Dept 2008]). Defendant completed treatment programs for both hisdrug addition and his mental issues. His prison record was exemplary. Nevertheless, itwas within the court's discretion to conclude that defendant's record while incarcerateddid not outweigh the seriousness of his offense and his extensive history of recidivismand absconding (see People vSpann, 88 AD3d 597, 598 [1st Dept 2011], lv denied 18 NY3d 886[2012]; People v McRae,88 AD3d 552 [1st Dept 2011], lv denied 18 NY3d 884 [2012]). Nor dodefendant's age and mental condition warrant a different result.Concur—Mazzarelli, J.P., Sweeny, Renwick, Richter and Román, JJ.