People v Bethea

People v Bethea 2016 NY Slip Op 08244 Decided on December 7, 2016 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 December 7, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.
2014-09850
(Ind. No. 4744/03)

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

v

Michael Bethea, appellant.

Lynn W. L. Fahey, New York, NY (Samuel Brown of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Thomas M. Ross, and Kendra Challenger-Nibbs of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Dowling, J.), dated September 24, 2014, which, after a hearing, denied his motion to be resentenced pursuant to CPL 440.46 on his conviction of criminal possession of a controlled substance in the third degree, which sentence was originally imposed, upon a jury verdict, on October 5, 2004.

ORDERED that the order is affirmed.

A defendant who is eligible for resentencing pursuant to CPL 440.46 enjoys a statutory presumption in favor of resentencing (see People v Duke, 132 AD3d 893; People v Brown, 115 AD3d 155, 156-157 affd 25 NY3d 247; People v Beasley, 47 AD3d 639, 641). However, resentencing is not automatic, and the determination is left to the discretion of the Supreme Court (see People v Duke, 132 AD3d 893; People v Karim, 85 AD3d 943, 944; People v Beasley, 47 AD3d at 641).

Here, in light of the defendant's extensive and continuous criminal history, which includes a conviction of manslaughter in the first degree, his lackluster institutional disciplinary record, and his arrest for criminal possession of a weapon while on parole, the Supreme Court providently exercised its discretion in denying his motion for resentencing pursuant to CPL 440.46 (see People v Duke, 132 AD3d 893; People v Peterson, 88 AD3d 1026, 1027; People v Overton, 86 AD3d 4, 16; People v Karim, 85 AD3d at 944).

DILLON, J.P., DICKERSON, HINDS-RADIX and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court