People v Barnes

People v Barnes 2012 NY Slip Op 03657 Decided on May 8, 2012 Appellate Division, Second 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 May 8, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
JOHN M. LEVENTHAL
JEFFREY A. COHEN, JJ.
2010-02904
(Ind. No. 1746/01)

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

v

Michael Barnes, appellant.




Lynn W. L. Fahey, New York, N.Y. (Melissa S. Horlick of
counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove, Jodi L. Mandel, and Maria
Park of counsel), for respondent.


DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guzman, J.), dated March 12, 2010, which, after a hearing, denied his motion to be resentenced pursuant to CPL 440.46 on his conviction of criminal sale of a controlled substance in the third degree, which sentence was originally imposed, upon his plea of guilty, on May 24, 2002.

ORDERED that the order is affirmed.

As correctly conceded by the People, the Supreme Court erroneously concluded that the defendant's status as a reincarcerated parole violator rendered him ineligible to apply for resentencing pursuant to CPL 440.46 (see People v Paulin, 17 NY3d 238, 241-242). However, in light of the defendant's extensive criminal history, his history of committing crimes while on parole, and his institutional record which included 11 infractions, the Supreme Court properly determined that, in any event, substantial justice dictated that the defendant's motion should be denied (see People v Karim, 85 AD3d 943, 944; People v Dennis, 84 AD3d 834, 835; People v Colon, 77 AD3d 849, 850; People v Winfield, 59 AD3d 747, 747-748; People v Flores, 50 AD3d 1156, 1157).
RIVERA, J.P., DICKERSON, LEVENTHAL and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court