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People v. Cristostomo

Supreme Court, Appellate Division, First Department, New York.
Nov 12, 2013
111 A.D.3d 433 (N.Y. App. Div. 2013)

Opinion

2013-11-12

The PEOPLE of the State of New York, Respondent, v. Fernando CRISTOSTOMO, Defendant–Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), and White & Case LLP, New York (Charles R. Koster of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Kayonia L. Whetstone of counsel), for respondent.



Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), and White & Case LLP, New York (Charles R. Koster of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Kayonia L. Whetstone of counsel), for respondent.
TOM, J.P., ANDRIAS, FRIEDMAN, FREEDMAN, CLARK, JJ.

Order, Supreme Court, Bronx County (Nicholas Iacovetta, J.), entered August 24, 2012, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.

The court properly exercised its discretion in determining that substantial justice dictated denial of the motion ( see e.g. People v. Gonzalez, 29 A.D.3d 400, 815 N.Y.S.2d 75 [2006],lv. denied7 N.Y.3d 867, 824 N.Y.S.2d 612, 857 N.E.2d 1143 [2006] ). Courts may deny the applications of persons who “have shown by their conduct that they do not deserve relief from their sentences” ( People v. Paulin, 17 N.Y.3d 238, 244, 929 N.Y.S.2d 36, 952 N.E.2d 1028 [2011] ). The resentencing statute “involves a complex balancing of several sets of compelling and in some respects competing concerns” ( People v. Sosa, 18 N.Y.3d 436, 442, 940 N.Y.S.2d 534, 963 N.E.2d 1235 [2012] ), requiring the “exercise of judicial discretion to determine whether relief to an eligible applicant is in the end consonant with the dictates of substantial justice” ( id. at 443, 940 N.Y.S.2d 534, 963 N.E.2d 1235).

The underlying conviction involved a series of undercover sales, made over a period of several months, in which the amounts of drugs sold and the surrounding circumstances indicated that defendant was not a low level seller. Furthermore, defendant committed a very serious violent felony while on work release from his drug conviction, and he had a poor prison disciplinary record. These negative factors far outweighed the positive factors cited by defendant, such as his educational and vocational accomplishments while incarcerated, his expressions of remorse for his criminal actions and the support of his family members.


Summaries of

People v. Cristostomo

Supreme Court, Appellate Division, First Department, New York.
Nov 12, 2013
111 A.D.3d 433 (N.Y. App. Div. 2013)
Case details for

People v. Cristostomo

Case Details

Full title:The PEOPLE of the State of New York, Respondent, v. Fernando CRISTOSTOMO…

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

Date published: Nov 12, 2013

Citations

111 A.D.3d 433 (N.Y. App. Div. 2013)
111 A.D.3d 433
2013 N.Y. Slip Op. 7407

Citing Cases

People v. Cristostomo

2013-12-31People v. Fernando CristostomoSmith1st Dept.: 111 A.D.3d 433, 974 N.Y.S.2d 403 (Bronx) Smith,…