Opinion
2011-10-20
The PEOPLE of the State of New York, Respondent,v.Les MATTHEWS, Defendant–Appellant.
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.
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.
Defendant is eligible to be considered for resentencing even though he was reincarcerated for a parole violation ( People v. Paulin, 17 N.Y.3d 238, 929 N.Y.S.2d 36, 952 N.E.2d 1028 [2011] ). 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 A.D.3d 400, 815 N.Y.S.2d 75 [2006], lv. denied 7 N.Y.3d 867, 824 N.Y.S.2d 612, 857 N.E.2d 1143 [2006] ), given defendant's extremely poor prison disciplinary record and his extensive criminal history.
TOM, J.P., ANDRIAS, CATTERSON, ACOSTA, RENWICK, JJ., concur.