People v Spann

People v Spann 2011 NY Slip Op 07499 Decided on October 25, 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 25, 2011
Tom, J.P., Saxe, Moskowitz, DeGrasse, Abdus-Salaam, JJ.
5824 1458/04

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

v

Gerard Spann, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Paul Wiener
of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sean T.
Masson of counsel), for respondent.

Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about February 5, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.

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]). Defendant's history of recidivism and absconding outweighed the positive factors cited by defendant, including his
prison record (see e.g. People v Soler, 45 AD3d 499 [2007], lv denied 9 NY3d 1009 [2007]).

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

ENTERED: OCTOBER 25, 2011

CLERK