PEOPLE v. VALDEZ RODRIGUEZ (2019)

MEMORANDUM AND ORDER

In 1994, defendant was convicted of one count of criminal sale of a controlled substance in the third degree and three counts of criminal possession of a controlled substance in the third degree.  He was sentenced as a second felony offender to concurrent prison terms of 121/212 to 25 years for these crimes.  In 1997, while incarcerated, he was convicted of aggravated harassment of an employee by an inmate and was sentenced to an additional 11/212 to 3 years in prison, to run consecutively to the sentences imposed on his 1994 convictions.  In 2004, while still incarcerated, he was convicted of attempted promoting prison contraband in the first degree and was sentenced to another 11/212 to 3 years in prison, to run consecutively to his prior sentences.  During the course of his incarceration, defendant was found guilty of 14 prison disciplinary infractions, many of which were tier III violations.  In 2010, defendant moved for resentencing on his 1994 convictions under the Drug Law Reform Act of 2009 (L 2009, ch 56, pt AAA, § 9, as codified in CPL 440.46).  Following a hearing, Supreme Court denied the motion, and defendant appeals.¹

A defendant who is eligible for resentencing under the Drug Law Reform Act is entitled to a statutory presumption in favor of resentencing (see L 2004, ch 738, § 23;  People v. Plato, 166 A.D.3d 814, 814, 85 N.Y.S.3d 771 [2018], lv denied 32 N.Y.3d 1176, 97 N.Y.S.3d 601, 121 N.E.3d 229 [2019];  People v. Coleman, 157 A.D.3d 1127, 1128, 69 N.Y.S.3d 752 [2018];  People v. Saffold, 148 A.D.3d 1669, 1669, 51 N.Y.S.3d 713 [2017], lv denied 29 N.Y.3d 1086, 64 N.Y.S.3d 176, 86 N.E.3d 263 [2017]).  However, resentencing is not automatic and may be denied, in the discretion of the sentencing court, upon a showing that substantial justice dictates denial (see People v. Plato, 166 A.D.3d at 814, 85 N.Y.S.3d 771;  People v. Coleman, 157 A.D.3d at 1127, 69 N.Y.S.3d 752;  People v. Saffold, 148 A.D.3d at 1669, 51 N.Y.S.3d 713).

Here, Supreme Court considered not only defendant's status as a prior felony offender at the time that he committed the 1994 crimes, but also his commission of additional felonies while in prison.  The court further took note of defendant's numerous prison disciplinary infractions and, considering the totality of the circumstances, concluded that substantial justice dictated that he not be resentenced.  Defendant's reliance upon the statutory presumption in favor of resentencing does not negate these other considerations, which were significant.  Therefore, we find no abuse of discretion in Supreme Court's denial of defendant's CPL 440.46 motion (see People v. Plato, 166 A.D.3d at 814, 85 N.Y.S.3d 771;  People v. Coleman, 157 A.D.3d 1127, 69 N.Y.S.3d 752;  People v. Saffold, 148 A.D.3d at 1669, 51 N.Y.S.3d 713;  People v. Allen, 118 A.D.3d 1048, 1049, 986 N.Y.S.2d 365 [2014], lv denied 24 N.Y.3d 958, 996 N.Y.S.2d 218, 20 N.E.3d 998 [2014];  People v. Buckery, 98 A.D.3d 1191, 1192, 950 N.Y.S.2d 915 [2012], lv denied 20 N.Y.3d 1009, 960 N.Y.S.2d 352, 984 N.E.2d 327 [2013]).

ORDERED that the order is affirmed.

FOOTNOTES

1.   Defendant's appeal from Supreme Court's denial of his motion was delayed pending this Court's remittal of the matter for the issuance of a written order by that court and the court's issuance of said order.  In the interim, defendant was released to parole supervision and was charged with various parole violations, as well as further crimes, resulting in additional convictions and his reincarceration.

Rumsey, J.

Egan Jr., J.P., Mulvey, Devine and Aarons, JJ., concur.