PEOPLE v. COLEMAN (2018)

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Sullivan County (LaBuda, J.), entered July 21, 2015, which denied defendant's motion for resentencing pursuant to CPL 440.46.

In 2001, defendant was convicted of criminal sale of a controlled substance in the third degree (two counts) and was sentenced as a persistent felony offender to an aggregate prison term of 15 years to life (4 A.D.3d 677, 773 N.Y.S.2d 146 [2004], lvs denied 2 N.Y.3d 797, 781 N.Y.S.2d 296, 814 N.E.2d 468 [2004], 3 N.Y.3d 672, 784 N.Y.S.2d 11, 817 N.E.2d 829 [2004] ).  In 2011, defendant sought resentencing under the Drug Law Reform Act of 2009 (see CPL 440.46).  County Court denied the application, finding that defendant was ineligible for resentencing under CPL 440.46.  Defendant appealed and this Court reversed, finding that County Court had erroneously failed to assign defendant counsel in the resentencing proceedings, and the matter was remitted to County Court (83 A.D.3d 1223, 1223, 920 N.Y.S.2d 482 [2011] ).  Upon remittal, County Court again denied the application on the ground that defendant was ineligible for resentencing under CPL 440.46.  This Court reversed, finding that defendant met the eligibility requirements for resentencing and remitted the matter for further proceedings (110 A.D.3d 76, 77–79, 970 N.Y.S.2d 329 [2013], aff’d 24 N.Y.3d 114, 996 N.Y.S.2d 571, 21 N.E.3d 200 [2014] ).  Following a hearing upon remittal, County Court denied resentencing pursuant to CPL 440.46 on substantial justice grounds, citing defendant's criminal history.  Defendant now appeals.

We affirm.  The Drug Law Reform Act provides that eligible defendants shall be resentenced unless “substantial justice dictates that the application should be denied” (L 2004, ch 738 § 23;  see People v. Davis, 128 A.D.3d 1269, 1269, 9 N.Y.S.3d 732 [2015], lv denied 27 N.Y.3d 996, 59 N.E.3d 1218 [2016] ).  “County Court is vested with discretion to determine whether substantial justice dictates denial of a defendant's application for resentencing” (People v. Peterson, 88 A.D.3d 1026, 1027, 930 N.Y.S.2d 497 [2011] [citation omitted];  see People v. Bethea, 145 A.D.3d 738, 738, 41 N.Y.S.3d 899 [2016], lv denied 29 N.Y.3d 946, 54 N.Y.S.3d 377, 76 N.E.3d 1080 [2017] ).  Here, defendant's criminal history includes several felony convictions, multiple misdemeanor convictions and a parole violation, as well as various prison disciplinary infractions.  Under these circumstances, we cannot say that County Court abused its discretion in denying resentencing (see People v. Davis, 128 A.D.3d at 1269–1270, 9 N.Y.S.3d 732;  People v. Graham, 97 A.D.3d 845, 845, 947 N.Y.S.2d 346 [2012];  People v. Carpenter, 86 A.D.3d 721, 721–722, 926 N.Y.S.2d 836 [2011] ).

ORDERED that the order is affirmed.

Mulvey, J.

McCarthy, J.P., Egan Jr., Devine and Rumsey, JJ., concur.