PEOPLE v. RIZO (2008)

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

The PEOPLE of the State of New York, Respondent, v. Hernando RIZO, Defendant-Appellant.

Decided: May 06, 2008

LIPPMAN, P.J., SAXE, BUCKLEY, ACOSTA, JJ.

Steven Banks, The Legal Aid Society, New York (David Crow of counsel), and Friedman Kaplan Seiler & Adelman LLP, New York (Lili Zandpour of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Mary C. Farrington of counsel), for respondent.

Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered April 5, 2007, which denied defendant's application for resentencing pursuant to the Drug Law Reform Act (L. 2004, ch. 738), unanimously affirmed.

The court properly exercised its discretion in determining that substantial justice dictated denial of the application. The magnitude of defendant's involvement in international drug trafficking outweighed his favorable prison record (see People v. Salcedo, 40 A.D.3d 356, 836 N.Y.S.2d 121 [2007], lv. denied 9 N.Y.3d 850, 840 N.Y.S.2d 777, 872 N.E.2d 890 [2007]; see also People v. Arana, 45 A.D.3d 311, 844 N.Y.S.2d 696 [2007], lv. dismissed 9 N.Y.3d 1031, 852 N.Y.S.2d 16, 881 N.E.2d 1203 [2008] ). The court relied primarily on facts that were undisputed or established at defendant's trial, and other reliable information, and we see no reason for a remand for further proceedings. We have considered and rejected defendant's remaining claims.

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