5778B 6372 04 v. Jamel McRae, Defendant–Appellant.

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Supreme Court, Appellate Division, First Department, New York.

The People of the State of New York,—Respondent, 3917/03 5778B 6372/04 v. Jamel McRae, Defendant–Appellant.

5778– 5778A

Decided: October 20, 2011

Gonzalez, P.J., Mazzarelli, Sweeny, Abdus–Salaam, Román, JJ. Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), and Benjamin A. Heiss, Sunnyside, for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Caleb Kruckenberg of counsel), for respondent.

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Appeals from order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about March 2, 2010, and order, same court (Renee A. White, J.), entered on or about April 19, 2010, each of which denied defendant's CPL 440.46 motion for resentencing, unanimously dismissed, as moot.   Order, same court (Maxwell Wiley, J.), entered on or about May 5, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.

In the May 5 order (indictment 6372/04), the court denied the motion on the merits.   We conclude that the court providently exercised its discretion when it determined that substantial justice dictated denial of the application in light of the seriousness of defendant's criminal history, which outweighed the

mitigating factors he cited (see e.g. People v. Gumbs, 66 AD3d 558 [2009], lv dismissed 14 NY3d 771 [2010] ).   The underlying facts of several of defendant's convictions indicate an involvement in large-scale drug distribution.

The appeals from the other two orders are moot because Supreme Court has granted defendant's renewed motions for resentencing as to those matters.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK