The People, etc., respondent, v. Jesus Gutierrez, appellant. (2013)

Submitted—May 23, 2013

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Ozzi, J.), dated May 2, 2012, which denied his motion for resentencing 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 May 29, 1997.

ORDERED that the order is affirmed.

The Supreme Court providently exercised its discretion in denying the defendant's motion for resentencing pursuant to CPL 440.46.   The defendant committed the instant offense while on parole for a previous offense, was convicted of two felonies and incurred 26 disciplinary violations, including 12 Tier III infractions, while incarcerated, and violated parole on four separate occasions after being released on parole during his current sentence.   The defendant was convicted of three new crimes arising out of conduct that occurred while he was released on parole during his current sentence.   Under the circumstances, notwithstanding the defendant's positive achievements while incarcerated, substantial justice dictated that his motion be denied (see People v. Cabrera, 103 AD3d 748, 748–749;  People v. Darwin, 102 AD3d 807, 808;  People v. Franklin, 101 AD3d 1148, 1148–1149).

BALKIN, J.P., HALL, LOTT and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court