| People v Colome-Rodriguez |
| 2014 NY Slip Op 06387 [120 AD3d 1525] |
| September 26, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJohnnie Colome-Rodriguez, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of counsel),for respondent.
Appeal from an order of the Onondaga County Court (William D. Walsh, J.), enteredFebruary 28, 2011. The order denied the motion of defendant for resentencing pursuantto CPL 440.46.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: On appeal from an order denying his motion for resentencingpursuant to the 2009 Drug Law Reform Act (CPL 440.46), defendant contends thatCounty Court failed to apprehend that it had discretion to resentence him. Thatcontention is belied by the record, which establishes that the People conceded thatdefendant was eligible for resentencing but the court concluded that "substantial justice"required denial of defendant's motion.
Contrary to defendant's further contention, "[t]he court properly exercised itsdiscretion in determining that substantial justice dictated that defendant's resentencingapplication should be denied" (People v Perez, 110 AD3d 528, 528 [2013], lvdenied 22 NY3d 1043 [2013]; see People v Sosa, 18 NY3d 436, 443 [2012]). In denyingthe application, the court considered the facts that defendant absconded prior to trial inthis case and was sentenced in absentia, that he remained at large for 17 years, and thathe possessed a large quantity of drugs that was inconsistent with street-level sales (seePerez, 110 AD3d at 528). Defendant did not contest the information in thepresentence report that he had been arrested on new drug charges in New York Citywhile he was at large, nor did he object to the court's statement that he possessed ahandgun at the time of the initial arrest on this matter. Thus, inasmuch "[a]s defendantfailed to object at the time of sentencing, the claim that the court considered improperfactors in imposing the sentence is unpreserved for [our] review" (People vRosado, 300 AD2d 838, 840-841 [2002], lv denied 99 NY2d 619 [2003];see People v Harrison, 82 NY2d 693, 694 [1993]; People v Mathieu, 83 AD3d735, 737 [2011], lv denied 17 NY3d 798 [2011]), and we decline to exerciseour power to review that claim as a matter of discretion in the interest of justice. Theinformation that defendant submitted on appeal regarding that claim is de hors therecord. Present—Scudder, P.J., Smith, Centra, Fahey and Peradotto, JJ.