People v Martinez

People v Martinez 2012 NY Slip Op 06883 Decided on October 16, 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 October 16, 2012
Tom, J.P., Mazzarelli, Andrias, DeGrasse, Román, JJ.
8302 4800/97

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

v

Jose Martinez, Defendant-Appellant.




Richard M. Greenberg, Office of Appellate Defender, New
York (Lauren Stephens-Davidowitz of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David C.
Bornstein of counsel), for respondent.

Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered on or about December 20, 2011, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.

The court considered the appropriate factors and properly exercised its discretion in concluding that substantial justice dictated a denial of resentencing. The underlying drug crime involved a very large quantity of cocaine, and defendant's plea of guilty to a third-degree sale was in satisfaction of an A-I felony charge. After being released on parole in 2001, defendant was convicted of federal drug charges and sentenced to 10 years' incarceration. These factors outweighed the mitigating factors cited by defendant (see e.g. People v Rodriguez, 83 AD3d 419 [1st Dept 2011], lv denied 17 NY3d 800 [2011]).

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

ENTERED: OCTOBER 16, 2012

CLERK