Opinion
2015-10-21
The PEOPLE, etc., respondent, v. William DUKE, appellant.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Denise A. Biderman of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Denise A. Biderman of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Kron, J.), dated February 3, 2014 which, after a hearing, upon remittitur, denied his motion to be resentenced pursuant to CPL 440.46 on his conviction of criminal possession of a controlled substance in the third degree, which sentence was originally imposed on April 4, 1995.
ORDERED that the order is affirmed.
A defendant who is eligible for resentencing pursuant to CPL 440.46 enjoys a statutory presumption in favor of resentencing ( see People v. Gonzalez, 96 A.D.3d 875, 876, 946 N.Y.S.2d 215; People v. Beasley, 47 A.D.3d 639, 641, 850 N.Y.S.2d 140; CPL 440.46[3]; L. 2004, ch. 738, § 23). “However, resentencing is not automatic, and the determination is left to the discretion of the Supreme Court” ( Peoplev. Gonzalez, 96 A.D.3d at 876, 946 N.Y.S.2d 215; see People v. Moore, 115 A.D.3d 990, 982 N.Y.S.2d 182; People v. Beasley, 47 A.D.3d at 641, 850 N.Y.S.2d 140).
Here, considering the defendant's extensive and continuous criminal history, dating back to 1981, his multiple parole violations, and his poor institutional record, which consisted of 13 Tier III infractions and 16 Tier II infractions, the Supreme Court did not improvidently exercise its discretion in denying the defendant's motion for resentencing pursuant to CPL 440.46 ( see People v. Golo, 109 A.D.3d 623, 624, 970 N.Y.S.2d 604, lv. granted 23 N.Y.3d 1037, 993 N.Y.S.2d 250, 17 N.E.3d 505; People v. Franklin, 101 A.D.3d 1148, 1148–1149, 956 N.Y.S.2d 494; People v. Gonzalez, 96 A.D.3d 875, 946 N.Y.S.2d 215; People v. Flores, 50 A.D.3d 1156, 856 N.Y.S.2d 668). HALL, J.P., AUSTIN, SGROI and HINDS–RADIX, JJ., concur.