The PEOPLE, etc., respondent, v. Dagoberto MILLAND, appellant.
-- February 06, 2013
Lynn W.L. Fahey, New York, N.Y. (Ellen Fried of counsel), for appellant.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Maria Park of counsel; Gregory Musso on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.), entered April 16, 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, which sentence was originally imposed, upon a jury verdict, on May 25, 1993.
ORDERED that the order is affirmed.
A defendant who is eligible for resentencing pursuant to CPL 440.46 is entitled to “a presumption in favor of granting a motion for resentencing relief absent a showing that substantial justice dictates the denial thereof” (People v. Beasley, 47 A.D.3d 639, 641, 850 N.Y.S.2d 140; see CPL 440.46 ; L. 2004, ch. 738, § 23). “However, resentencing is not automatic, and the determination is left to the discretion of the Supreme Court” (People v. Gonzalez, 96 A.D.3d 875, 876, 946 N.Y.S.2d 215; see People v. Beasley, 47 A.D.3d at 641, 850 N.Y.S.2d 140). In exercising its discretion, a court may “consider any facts or circumstances relevant to the imposition of a new sentence which are submitted by [the defendant] or the people” (L. 2004, ch. 738, § 23), including the defendant's prior criminal history and institutional record of confinement, the severity of the current offense, whether the defendant has shown remorse, and whether the defendant has a history of parole or probation violations (see People v. Overton, 86 A.D.3d 4, 12, 923 N.Y.S.2d 619; People v. Avila, 84 A.D.3d 1259, 923 N.Y.S.2d 674).
Here, the Supreme Court did not improvidently exercise its discretion in denying the defendant's motion for resentencing pursuant to CPL 440.46. The defendant had an extensive criminal history dating back to 1977, which included six felony convictions and instances of reoffending while on parole. The defendant's institutional disciplinary record included 18 Tier 2 infractions and 16 Tier 3 infractions, involving, inter alia, violent and disruptive conduct and drug use. On numerous occasions in prison, the defendant was removed from vocational, educational, and rehabilitative programs for disciplinary reasons, and he failed to complete substance abuse treatment or anger management programs. Under the circumstances, substantial justice dictated that the motion be denied (see People v. Gonzalez, 96 A.D.3d at 876, 946 N.Y.S.2d 215; People v. Myles, 90 A.D.3d 952, 954, 935 N.Y.S.2d 99; People v. Witkowski, 82 A.D.3d 913, 918 N.Y.S.2d 367; People v. Winfield, 59 A.D.3d 747, 874 N.Y.S.2d 225).