People v Gutierrez

People v Gutierrez 2013 NY Slip Op 05587 Decided on August 7, 2013 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 August 7, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RUTH C. BALKIN, J.P.
L. PRISCILLA HALL
PLUMMER E. LOTT
SANDRA L. SGROI, JJ.
2012-04182
(Ind. No. 11464/96)

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

v

Jesus Gutierrez, appellant.




Lynn W. L. Fahey, New York, N.Y. (Jessica M. McNamara of
counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove, Jodi L. Mandel, and
Michael L. Brenner of counsel), for
respondent.


DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Ozzi, J.), dated May 2, 2012, which denied his motion for resentencing 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 29, 1997.

ORDERED that the order is affirmed.

The Supreme Court providently exercised its discretion in denying the defendant's motion for resentencing pursuant to CPL 440.46. The defendant committed the instant offense while on parole for a previous offense, was convicted of two felonies and incurred 26 disciplinary violations, including 12 Tier III infractions, while incarcerated, and violated parole on four separate occasions after being released on parole during his current sentence. The defendant was convicted of three new crimes arising out of conduct that occurred while he was released on parole during his current sentence. Under the circumstances, notwithstanding the defendant's positive achievements while incarcerated, substantial justice dictated that his motion be denied (see People v Cabrera, 103 AD3d 748, 748-749; People v Darwin, 102 AD3d 807, 808; People v Franklin, 101 AD3d 1148, 1148-1149).
BALKIN, J.P., HALL, LOTT and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court