People v Cruz

People v Cruz 2012 NY Slip Op 05261 Decided on June 28, 2012 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 June 28, 2012
Mazzarelli, J.P., Catterson, Moskowitz, Manzanet-Daniels, Román, JJ. 8061-
1538/01 8062

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

v

Beltra Cruz, Defendant-Appellant.




Richard M. Greenberg, Office of the Appellate Defender, New
York (Thomas M. Nosewicz of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Orrie A. Levy of
counsel), for respondent.

Order, Supreme Court, Bronx County (Robert G. Seewald, J.), entered February 16, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously reversed, as a matter of discretion in the interest of justice, the motion granted, and the matter remanded for further proceedings consistent with this decision to include specifying and informing defendant of a proposed sentence.

The record of the resentencing proceeding does not dictate denial of resentencing on substantial justice grounds (see e.g. People v Milton, 86 AD3d 478 [2011]). The court denied the motion primarily on the ground that defendant absconded prior to trial and remained at large for six years. However, we find that this misconduct may have been outweighed by mitigating factors.

Although defendant is a second felony drug offender, both his predicate felony and the underlying offense involved street level drug sales, and the remainder of his criminal history is insignificant. Defendant has no history of violence, and his prison disciplinary record is relatively minor. While incarcerated, defendant participated extensively in educational and training programs and received recommendations for potential future employment. Thus, we remand the matter for reconsideration of defendant's motion. [*2]

We leave the length of the new sentence to the independent discretion of Supreme Court.

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

ENTERED: JUNE 28, 2012

DEPUTY CLERK