PEOPLE v. PEÑA (2008)

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

The PEOPLE of the State of New York, Respondent, v. David PEÑA, Defendant-Appellant.

Decided: October 16, 2008

SAXE, J.P., CATTERSON, McGUIRE, ACOSTA, DeGRASSE, JJ.

Steven Banks, The Legal Aid Society, New York (David Crow of counsel), and Proskauer Rose LLP, New York (Jennifer O'Brien of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Jared Wolkowitz of counsel), for respondent.

Order, Supreme Court, New York County (Robert H. Straus, J.), entered on or about June 20, 2007, 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 the denial of the application. Defendant's record of increasingly serious crimes, along with his illegal reentry into the United States and resumption of drug trafficking after being deported for such activity, outweighed evidence of his rehabilitation while incarcerated (see People v. Alcaraz, 46 A.D.3d 253, 847 N.Y.S.2d 61 [2007] ). In denying resentencing, the court properly considered the totality of circumstances and did not rely solely on defendant's advantageous plea bargain (see People v. Jones, 50 A.D.3d 282, 855 N.Y.S.2d 69 [2008] ).

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