People v Salcedo

People v Salcedo 2007 NY Slip Op 04170 [40 AD3d 356] May 15, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

The People of the State of New York, Respondent,
v
Tirso Salcedo, Appellant.

—[*1] Rochman Platzer Fallick Sternheim Luca & Pearl, LLP, New York (Jillian S. Harrington of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Marc Krupnick of counsel), for respondent.

Order, Supreme Court, New York County (William A. Wetzel, J.), entered December 19, 2005, which denied defendant's motion to be resentenced pursuant to the Drug Law Reform Act, unanimously affirmed.

Section 23 of the Drug Law Reform Act (L 2004, ch 738) provides, in pertinent part, that the court should grant a resentencing application "unless substantial justice dictates that the application should be denied." We find that the court properly recognized the degree of discretion it possessed (compare e.g. People v Arana, 32 AD3d 305 [2006]), and providently exercised it. "The Legislature could have made resentencing automatic, or it could have required a finding of extraordinary circumstances in order to deny resentencing, but it did not do either" (People v Gonzalez, 29 AD3d 400 [2006], lv denied 7 NY3d 867 [2006]). Defendant, who was convicted of three counts of first-degree drug possession, was the head of a multimillion dollar international drug organization, and his evidence of rehabilitation while incarcerated was insignificant in light of the magnitude of his crimes. We have considered and rejected defendant's remaining arguments. Concur—Saxe, J.P., Nardelli, Gonzalez, Sweeny and Catterson, JJ.