People v Matthews

People v Matthews 2011 NY Slip Op 07370 Decided on October 20, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 20, 2011
Tom, J.P., Andrias, Catterson, Acosta, Renwick, JJ.
5790 6395/99

[*1]The People of the State of New York, Respondent,

v

Les Matthews, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Barbara Zolot of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Naomi C.
Reed of counsel), for respondent.

Order, Supreme Court, New York County (Ronald A. Zweibel, J.), entered on or about January 21, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.

Defendant is eligible to be considered for resentencing even though he was reincarcerated for a parole violation (People v Paulin, 17 NY3d 238 [2011]). However, the record supports the court's alternative holding in which it denied the motion on its merits. The court properly exercised its discretion in determining that substantial justice dictated denial of the motion (see generally People v Gonzalez, 29 AD3d 400 [2006], lv denied 7 NY3d 867 [2006]), given defendant's extremely poor prison disciplinary record and his extensive criminal history.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 20, 2011

CLERK