People v Nieves

People v Nieves 2013 NY Slip Op 08355 Decided on December 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 December 12, 2013
Mazzarelli, J.P., Sweeny, DeGrasse, Manzanet-Daniels, Feinman, JJ. 11315-
2537/95 11316

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

v

Michael Nieves, Defendant-Appellant.




Richard M. Greenberg, Office of the Appellate Defender, New
York (Avi Springer of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila L.
Bautista of counsel), for respondent.

Order, Supreme Court, New York County (Melissa C. Jackson, J.), entered on or about April 17, 2013, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed. Appeal from order, same court and Justice, entered on or about June 3, 2013, which granted reargument but adhered to its prior determination, unanimously dismissed as academic.

The court properly exercised its discretion in determining that substantial justice dictated the denial of the motion (see generally People v Gonzalez, 29 AD3d 400 [1st Dept 2006], lv denied 7 NY3d 867 [2006]). The court properly considered the totality of the circumstances, including defendant's history of recidivism, absconding, and failing to profit from rehabilitation opportunities. These factors outweighed the positive factors cited by defendant (see e.g. People v Hurst, 83 AD3d 499 [1st Dept 2011] lv denied 17 NY3d 796 [2011]).

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

ENTERED: DECEMBER 12, 2013

CLERK