PEOPLE v. CIRIACO (2007)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Melis-Piadoso CIRIACO, Defendant-Appellant.

Decided: December 18, 2007

TOM, J.P., FRIEDMAN, WILLIAMS, McGUIRE, KAVANAGH, JJ.

Steven Banks, The Legal Aid Society, New York (David Crow of counsel), and Esterina Giuliani, New York (Jennifer M. Sheinfeld of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Paula-Rose Stark of counsel), for respondent.

Order, Supreme Court, New York County (Michael R. Ambrecht, J.), entered on or about July 27, 2006, which denied defendant's motion for resentencing under the 2005 Drug Law Reform Act (L. 2005, ch. 643), unanimously affirmed.

The court properly exercised its discretion in determining that substantial justice dictated denial of the application (see e.g. People v. Vasquez, 41 A.D.3d 111, 837 N.Y.S.2d 87 [2007], lv. dismissed 9 N.Y.3d 870, 840 N.Y.S.2d 899, 872 N.E.2d 1205 [2007]; People v. Gonzalez, 29 A.D.3d 400, 815 N.Y.S.2d 75 [2006], lv. denied 7 N.Y.3d 867, 824 N.Y.S.2d 612, 857 N.E.2d 1143 [2006] ). The court considered the appropriate factors, including defendant's history of recidivism, flight while awaiting sentence and conduct while incarcerated. We note that had defendant not absconded prior to sentencing, he would not have been eligible for resentencing under the 2005 Drug Law Reform Act. We have considered and rejected defendant's remaining arguments.

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