PEOPLE v. HERRERA (2008)

Appeal by the defendant from an order of the County Court, Suffolk County (Braslow, J.), dated June 20, 2007, which, after a hearing, denied his application to be resentenced under the Drug Law Reform Act of 2004 (L. 2004, ch. 738, § 23), and the Drug Law Reform Act of 2005 (L. 2005, ch. 643, § 1).

ORDERED that the order is affirmed.

In 1984 the defendant was convicted, following a jury trial, of criminal sale of a controlled substance in the first degree, a class A-I felony, and conspiracy in the second degree.   The convictions arose from the defendant's involvement in bringing more than 50 pounds of cocaine from Colombia, South America, to New York. The defendant continued his illegal drug activities while he was incarcerated following his 1984 conviction.   In 1988 he was convicted, upon his plea of guilty, of criminal sale of a controlled substance in the second degree, a class A-II felony, and in 1993 he was convicted in the United States District Court for the Western District of New York, upon his plea of guilty, of conspiracy to distribute and possess five kilograms of cocaine.

In 2006 the defendant applied for resentencing under the Drug Law Reform Act of 2004, with respect to his 1984 conviction of the A-I felony (see L. 2004, ch. 738, § 23), and under the Drug Law Reform Act of 2005, with respect to his 1988 conviction of the A-II felony (see L. 2005, ch. 643, § 1).   The People opposed the application.   After a hearing, the County Court denied resentencing.   We affirm.

The County Court providently exercised its discretion in denying the defendant's application to be resentenced.   The defendant was a large-scale drug dealer whose institutional record of confinement included additional serious drug-related convictions.   Based upon the record presented, “substantial justice dictate[d] that the application should be denied” (L. 2004, ch. 738, § 23;  L. 2005, ch. 643, § 1;  People v. Stamps, 50 A.D.3d 827, 854 N.Y.S.2d 652, lv. dismissed 10 N.Y.3d 939, 862 N.Y.S.2d 346, 892 N.E.2d 412;  People v. Aguirre, 47 A.D.3d 489, 849 N.Y.S.2d 540;   People v. Ayala, 43 A.D.3d 800, 841 N.Y.S.2d 778).