Opinion
01-02-2015
The PEOPLE of the State of New York, Respondent, v. Lamar O. BROWN, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David R. Panepinto of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David R. Panepinto of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
Opinion
MEMORANDUM:Defendant appeals from an order denying his application for resentencing upon his 2004 conviction of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [former (1) ] ) pursuant to the 2005 Drug Law Reform Act (L. 2005, ch. 643, § 1). We conclude that Supreme Court properly denied the application for resentencing because defendant, at the time of his application, was eligible for parole and thus was ineligible for resentencing (see People v. Mills, 11 N.Y.3d 527, 534, 872 N.Y.S.2d 705, 901 N.E.2d 196 ; People v. Smith, 45 A.D.3d 1478, 1479, 846 N.Y.S.2d 520 ). In any event, we further conclude that the court providently exercised its discretion in determining that substantial justice would have dictated denial of the application had defendant been eligible for resentencing (see People v. Dominguez, 88 A.D.3d 901, 901, 931 N.Y.S.2d 123, lv. denied 18 N.Y.3d 882, 939 N.Y.S.2d 752, 963 N.E.2d 129 ; People v. Savinan, 59 A.D.3d 247, 247, 873 N.Y.S.2d 562, lv. dismissed 12 N.Y.3d 787, 879 N.Y.S.2d 64, 906 N.E.2d 1098 ; People v. Flores, 50 A.D.3d 1156, 1156, 856 N.Y.S.2d 668, lv. dismissed 10 N.Y.3d 934, 862 N.Y.S.2d 340, 892 N.E.2d 406 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed.