People v Gonzalez

People v Gonzalez 2012 NY Slip Op 01273 Decided on February 14, 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 February 14, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
ANITA R. FLORIO
CHERYL E. CHAMBERS
SHERI S. ROMAN, JJ.
2010-10508
(Ind. No. 3988/97)

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

v

Luis Gonzalez, appellant.




Lynn W. L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel;
Peter Kapitonov on the brief), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove and Thomas M. Ross of
counsel; Joseph N. Schneiderman on the
brief), for respondent.


DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.), entered October 18, 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 (two counts), which sentences were originally imposed, upon his pleas of guilty, on October 22, 1998.

ORDERED that the order is affirmed.

The defendant moved to be resentenced pursuant to CPL 440.46, a statute which extended the availability of reduced sentencing under the Drug Law Reform Act of 2004 (L 2004, ch 738) to individuals convicted of class B drug felonies (see L 2004, ch 738, § 23; L 2005, ch 643, § 1). Following a hearing, the Supreme Court denied the motion.

The defendant is a repeat felony offender with a lengthy criminal history dating back to 1979, which includes four felony drug convictions. He also has incurred 32 disciplinary infractions while incarcerated and has repeatedly failed mandated drug treatment programs while in prison. Under these circumstances, the Supreme Court providently exercised its discretion in determining that substantial justice dictated that the defendant's motion should be denied (see CPL 440.46[3]; L 2004, ch 738; People v Murray, 89 AD3d 567; People v Colon, 77 AD3d 849, 850).
DILLON, J.P., FLORIO, CHAMBERS and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court