PEOPLE v. MILLER (2011)

Appeal by the defendant from an order of the Supreme Court, Kings County (Gerges, J.), entered June 11, 2010, which denied his motion to be resentenced pursuant to CPL 440.46 on his conviction of criminal sale of a controlled substance in the third degree, which sentence was originally imposed, upon his plea of guilty, on March 22, 2005.

ORDERED that the order is affirmed.

 A defendant who is eligible for resentencing pursuant to CPL 440.46 enjoys “a presumption in favor of granting a motion for resentencing relief absent a showing that substantial justice dictates the denial thereof” (People v. Beasley, 47 A.D.3d 639, 641, 850 N.Y.S.2d 140;  see CPL 440.46 [3];  L. 2004, ch. 738, § 23).   However, resentencing is not automatic, and the determination is left to the discretion of the Supreme Court (see People v. Beasley, 47 A.D.3d at 641, 850 N.Y.S.2d 140;  People v. Vega, 40 A.D.3d 1020, 1020–1021, 836 N.Y.S.2d 685).   In exercising its discretion, a court may “consider any facts or circumstances relevant to the imposition of a new sentence which are submitted by [the defendant] or the people” (L. 2004, ch. 738, § 23), including the defendant's institutional record of confinement, the defendant's prior criminal history, the severity of the current offense, whether the defendant has shown remorse, and whether the defendant has a history of parole or probation violations (see People v. Overton, 86 A.D.3d 4, 12, 923 N.Y.S.2d 619, lv. denied 17 N.Y.3d 820, 929 N.Y.S.2d 809, 954 N.E.2d 100;  People v. Dennis, 84 A.D.3d 834, 835, 921 N.Y.S.2d 879, lv. denied 17 N.Y.3d 805, 929 N.Y.S.2d 565, 953 N.E.2d 803).

 Here, the Supreme Court properly considered, inter alia, the defendant's criminal history, including his juvenile delinquency adjudication for acts which, if committed by an adult, would have constituted the crime of manslaughter in the second degree (see Family Ct. Act § 381.2[2];  see also People v. Sapp, 169 A.D.2d 659, 660, 565 N.Y.S.2d 79), his history of violating the terms of his probation, the severity of the instant offense, and his institutional record of confinement, which included two tier III and four tier II disciplinary infractions for, among other things, arson and fighting (cf. People v. Hickman, 85 A.D.3d 1057, 1057–1058, 925 N.Y.S.2d 865).   Under the circumstances, the Supreme Court did not improvidently exercise its discretion in concluding that substantial justice dictated the denial of the defendant's motion to be resentenced pursuant to CPL 440.46 (see People v. Karim, 85 A.D.3d 943, 943–944, 925 N.Y.S.2d 835, lv. denied 17 N.Y.3d 818, 929 N.Y.S.2d 807, 954 N.E.2d 98;  People v. Colon, 77 A.D.3d 849, 850, 909 N.Y.S.2d 144;  People v. Curry, 52 A.D.3d 732, 732, 860 N.Y.S.2d 610;  People v. Flores, 50 A.D.3d 1156, 1157, 856 N.Y.S.2d 668;  People v. Sanders, 36 A.D.3d 944, 946–947, 829 N.Y.S.2d 187).