PEOPLE v. SIMS (2007)

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

The PEOPLE of the State of New York, Respondent, v. Billy SIMS, Defendant-Appellant.

Decided: December 18, 2007

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

Steven Banks, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Paula-Rose Stark of counsel), for respondent.

Order, Supreme Court, New York County (Richard D. Carruthers, J.), entered on or about June 9, 2006, which denied defendant's motion for resentencing under the Drug Law Reform Act of 2005 (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] ). The court considered the appropriate criteria for granting or denying such an application, with particular reference to defendant's very serious criminal record. In its decision, the court expressly stated the applicable standard. While the court used different language elsewhere in its decision, we do not read that language as indicative of a misapprehension by the court of the correct legal standard (cf. People v. Delgado, 80 N.Y.2d 780, 587 N.Y.S.2d 271, 599 N.E.2d 675 [1992] ).

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