PEOPLE v. ALVARADO (2008)

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

The PEOPLE of the State of New York, Respondent, v. Leon ALVARADO, Defendant-Appellant.

Decided: February 26, 2008

LIPPMAN, P.J., TOM, NARDELLI, CATTERSON, MOSKOWITZ, JJ.

Steven Banks, The Legal Aid Society, New York (Denise M. Fabiano of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Marc Krupnick of counsel), for respondent.

Order, Supreme Court, New York County (Daniel P. FitzGerald, J.), entered on or about March 16, 2006, which denied defendant's motion to be resentenced pursuant to the 2004 Drug Law Reform Act, unanimously affirmed.

Defendant's argument that the provision of the DLRA which permits a court to deny a resentencing application if substantial justice so dictates violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 [2000] is unavailing (People v. Alea, 46 A.D.3d 398, 848 N.Y.S.2d 96 [2007] ).

The court providently exercised its discretion in denying resentencing (see id.), in view of the seriousness of defendant's drug crime, as well as his violent criminal history. We note that in addition to his life sentence for the underlying first-degree drug sale, defendant is serving a concurrent life sentence for murder.

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