PEOPLE v. DAVIS (2023)

Order, Supreme Court, New York County (Juan M. Merchan, J.), entered on or about June 1, 2022, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.

The court properly determined that substantial justice dictated the denial of defendant's resentencing application, as defendant's commission of a drug-related homicide, as well as his attempt to avoid the consequences of his actions, militate against resentencing (see People v. Rodriguez, 83 A.D.3d 419, 420, 920 N.Y.S.2d 83 [1st Dept. 2011], lv denied 17 N.Y.3d 800, 929 N.Y.S.2d 108, 952 N.E.2d 1103 [2011]).  Defendant's criminal history included not only the drug-related homicide but also a subsequent escape from incarceration while awaiting sentence;  a narcotics sale to an undercover officer while still a fugitive;  and numerous disciplinary infractions while he was incarcerated (see People v. Golo, 26 N.Y.3d 358, 362, 23 N.Y.S.3d 110, 44 N.E.3d 185 [2015];  People v. Arroyo, 99 A.D.3d 515, 515, 952 N.Y.S.2d 42 [1st Dept. 2012], lv denied 20 N.Y.3d 1059, 962 N.Y.S.2d 610, 985 N.E.2d 920 [2013]).  The court considered the mitigating factors proffered by defendant, but properly concluded that the relief sought was incompatible with the ends of substantial justice (see Rodriguez, 83 A.D.3d at 420, 920 N.Y.S.2d 83).

Defendant failed to preserve his claim that the court erred in deciding his motion on the papers without providing him an opportunity to be present and heard (see People v. Alaouie, 86 A.D.3d 462, 926 N.Y.S.2d 530 [1st Dept. 2011], lv denied 18 N.Y.3d 856, 938 N.Y.S.2d 864, 962 N.E.2d 289 [2011]), and we decline to consider it in the interest of justice.  As an alternative holding, we reject the claim on the merits.  Defendant had the opportunity to present ample evidence to the court, and there was no dispute regarding the facts that led the court to deny resentencing.