People v Cristostomo

People v Cristostomo 2013 NY Slip Op 07407 Decided on November 12, 2013 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 November 12, 2013
Tom, J.P., Andrias, Friedman, Freedman, Clark, JJ.
10985 2809/01

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

v

Fernando Cristostomo, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Barbara Zolot of counsel), and White & Case LLP, New York
(Charles R. Koster of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Kayonia L.
Whetstone of counsel), for respondent.

Order, Supreme Court, Bronx County (Nicholas Iacovetta, J.), entered August 24, 2012, 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 e.g. People v Gonzalez, 29 AD3d 400 [2006], lv denied 7 NY3d 867 [2006]). Courts may deny the applications of persons who "have shown by their conduct that they do not deserve relief from their sentences" (People v Paulin, 17 NY3d 238, 244 [2011]). The resentencing statute "involves a complex balancing of several sets of compelling and in some respects competing concerns" (People v Sosa, 18 NY3d 436, 442 [2012]), requiring the "exercise of judicial discretion to determine whether relief to an eligible applicant is in the end consonant with the dictates of substantial justice" (id. at 443).

The underlying conviction involved a series of undercover sales, made over a period of several months, in which the amounts of drugs sold and the surrounding circumstances indicated that defendant was not a low level seller. Furthermore, defendant committed a very serious violent felony while on work release from his drug conviction, and he had a poor prison disciplinary record. These negative factors far outweighed the positive factors cited by [*2]defendant, such as his educational and vocational accomplishments while incarcerated, his expressions of remorse for his criminal actions and the support of his family members.

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

ENTERED: NOVEMBER 12, 2013

CLERK