PEOPLE v. DE LA CRUZ (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed.

Memorandum:  On appeal from an order denying his application for resentencing pursuant to the 2009 Drug Law Reform Act (see CPL 440.46), defendant contends that County Court erred in concluding that certain factors overcame the statutory presumption in favor of resentencing.  We conclude that the court did not abuse its discretion in denying defendant's application.

It is well settled that a “defendant who is eligible for resentencing pursuant to CPL 440.46 enjoys a statutory presumption in favor of resentencing ․ However, resentencing is not automatic, and the determination is left to the discretion of the” sentencing court (People v. Bethea, 145 A.D.3d 738, 738, 41 N.Y.S.3d 899 [2d Dept. 2016], lv denied 29 N.Y.3d 946, 54 N.Y.S.3d 377, 76 N.E.3d 1080 [2017];  see People v. Arroyo, 99 A.D.3d 515, 515, 952 N.Y.S.2d 42 [1st Dept. 2012], lv denied 20 N.Y.3d 1059, 962 N.Y.S.2d 610, 985 N.E.2d 920 [2013] ).  Contrary to defendant's contention, the court did not abuse its discretion in determining that substantial justice dictated denial of his application for resentencing, given “the seriousness of the underlying crime[s], and defendant's illegal reentry into the United States” and resumption of drug sales after being released from custody and deported (People v. Rodriguez, 68 A.D.3d 543, 543, 889 N.Y.S.2d 459 [1st Dept. 2009];  see People v. Peña, 55 A.D.3d 393, 393, 866 N.Y.S.2d 37 [1st Dept. 2008];  People v. Alcaraz, 46 A.D.3d 253, 253, 847 N.Y.S.2d 61 [1st Dept. 2007] ), as well as defendant's numerous disciplinary infractions while incarcerated (see People v. Darwin, 102 A.D.3d 807, 808, 958 N.Y.S.2d 190 [2d Dept. 2013];  People v. Colon, 77 A.D.3d 849, 850, 909 N.Y.S.2d 144 [2d Dept. 2010], lv denied 15 N.Y.3d 952, 917 N.Y.S.2d 112, 942 N.E.2d 323 [2010] ).