Opinion
5790.
Decided on October 20, 2011.
Order, Supreme Court, New York County (Ronald A. Zweibel, J.), entered on or about January 21, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Naomi C. Reed of counsel), for respondent.
Tom, J.P., Andrias, Catterson, Acosta, Renwick, JJ.
Defendant is eligible to be considered for resentencing even though he was reincarcerated for a parole violation ( People v Paulin , 17 NY3d 238 ). However, the record supports the court's alternative holding in which it denied the motion on its merits. The court properly exercised its discretion in determining that substantial justice dictated denial of the motion ( see generally People v Gonzalez , 29 AD3d 400 , lv denied 7 NY3d 867), given defendant's extremely poor prison disciplinary record and his extensive criminal history.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.