| People v Golo |
| 2013 NY Slip Op 05701 [109 AD3d 623] |
| August 21, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ally Golo, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Danielle Fenn of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County(Margulis, J.), dated June 6, 2012, which denied, without a hearing, his motion to beresentenced pursuant to CPL 440.46 upon his conviction of criminal sale of a controlledsubstance in the third degree, which sentence was originally imposed, upon his plea ofguilty, on June 7, 2004.
Ordered that the order is affirmed.
The 2009 Drug Law Reform Act, codified at CPL 440.46, provides that "[a]nyperson in the custody of the department of corrections and community supervisionconvicted of a class B felony offense defined in article two hundred twenty of the penallaw which was committed prior to [January 13, 2005], who is serving an indeterminatesentence with a maximum term of more than three years, may . . . apply tobe resentenced" (CPL 440.46 [1]).
However, the resentencing provisions of CPL 440.46 do not apply "to any personwho is serving a sentence on a conviction for or has a predicate felony conviction for anexclusion offense" (CPL 440.46 [5]). As relevant here, CPL 440.46 (5) (a) defines an"exclusion offense" as "a crime for which the person was previously convicted within thepreceding ten years, excluding any time during which the offender was incarcerated forany reason between the time of commission of the previous felony and the time ofcommission of the present felony, which was . . . a violent felony offense asdefined in section 70.02 of the penal law" (id.). The 10-year "look-back" periodof CPL 440.46 (5) (a) is properly measured from the date of the defendant's resentencingmotion (see People v Sosa,18 NY3d 436, 440 [2012]; People v Brown, 85 AD3d 940, 941 [2011]; People v Lashley, 83 AD3d868 [2011]).
The Supreme Court denied the defendant's motion for resentencing pursuant to CPL440.46 on the ground that he was ineligible for resentencing. The Supreme Court alsofound that considerations of substantial justice warranted the denial of the motion.Although we conclude that the defendant is eligible for resentencing, we affirm the orderdenying the defendant's motion, since we agree with the Supreme Court thatconsiderations of substantial justice warranted the denial of the motion.
We agree with the defendant that his convictions of two counts of robbery in the first[*2]degree, a violent felony offense as defined in PenalLaw § 70.02 (1) (a), did not constitute an "exclusion offense" within the meaningof CPL 440.46 (5) (a) because he committed those offenses after committing the drugoffense for which he seeks resentencing (see People v Myles, 90 AD3d 952, 953 [2011]; People v Devivo, 87 AD3d794, 795 [2011]). Furthermore, the defendant was convicted and sentenced on therobbery convictions after he was convicted and sentenced on the present drug offense. Asa result, the robbery convictions cannot be characterized as "previous felon[ies]" withinthe meaning of CPL 440.46 (5) (a) and, thus, do not constitute exclusion offenses(see People v Myles, 90 AD3d at 953; see also People v Cristostomo, 95 AD3d 401, 402 [2012]).As the defendant meets all other requirements for eligibility pursuant to CPL 440.46 (1),he is eligible for resentencing.
However, in light of the defendant's criminal history, convictions of robbery in thefirst degree, parole violations, and institutional record of confinement, the SupremeCourt providently exercised its discretion in concluding that considerations of substantialjustice dictated the denial of the defendant's motion (see People v Darwin, 102 AD3d 807, 808 [2013];People v Myles, 90 AD3d at 954; People v Devivo, 87 AD3d at 796).Although the defendant successfully completed substance abuse, educational, andvocational programs while incarcerated, this evidence of rehabilitation does not outweighthe defendant's violent felony convictions, parole violations, and institutional record (see People v Cabrera, 103AD3d 748 [2013]; People vFranklin, 101 AD3d 1148, 1149 [2012]; cf. People v Concepcion, 85 AD3d 811 [2011]).
The defendant's remaining contention is unpreserved for appellate review and, in anyevent, without merit. Mastro, J.P., Hall, Lott and Sgroi, JJ., concur.