People v Johnson

People v Johnson 2014 NY Slip Op 03587 Decided on May 15, 2014 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 May 15, 2014
Mazzarelli, J.P., Andrias, DeGrasse, Manzanet-Daniels, Feinman, JJ.
12489 7874/98 7877/98

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

v

David Johnson, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Harold V.
Ferguson, Jr. of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ellen
Stanfield Friedman of counsel), for respondent.

Order, Supreme Court, New York County (Lewis Bart Stone, J.), entered on or about October 24, 2011, 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 defendant's application. In affirming an order which denied resentencing on defendant's class A-II felony conviction, this Court noted defendant's "role as a leader of an extensive and violent drug trafficking enterprise" (51 AD3d 598 [1st Dept 2008]). The record does not support defendant's argument that the court applied an incorrect standard, allegedly treating defendant's present motion as one for reargument of the denial of resentencing on the A-II felony. The court merely found that the same factors that warranted denial of defendant's prior motion, i.e., his leadership role in the enterprise, also warranted denial of his present motion, especially given defendant's extensive criminal history and prison disciplinary record (see e.g. People v Vargas, 113 AD3d 570 [1st Dept 2014]).

We have considered defendant's remaining arguments and find them unavailing.

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

ENTERED: MAY 15, 2014

CLERK