People v. Rivers

12 Citing cases

  1. People v. Peterson

    88 A.D.3d 1026 (N.Y. App. Div. 2011)   Cited 1 times

    46[3]; People v. LaPorte, 53 A.D.3d 984, 985, 863 N.Y.S.2d 113 [2008] ). County Court is vested with discretion to determine whether substantial justice dictates denial of a defendant's application for resentencing ( see People v. LaPorte, 53 A.D.3d at 985, 863 N.Y.S.2d 113; People v. Rivers, 43 A.D.3d 1247, 1247, 842 N.Y.S.2d 611 [2007], lv. dismissed 9 N.Y.3d 993, 848 N.Y.S.2d 610, 878 N.E.2d 1026 [2007] ). We find that the court providently exercised its discretion and did not, as defendant contends, inappropriately shift the burden of proof ( see People v. Colon, 77 A.D.3d 849, 850, 909 N.Y.S.2d 144 [2010], lv. denied 15 N.Y.3d 952, 917 N.Y.S.2d 112, 942 N.E.2d 323 [2010]; People v. LaPorte, 53 A.D.3d at 985, 863 N.Y.S.2d 113; People v. Rivers, 43 A.D.3d at 1247, 842 N.Y.S.2d 611; compare People v. Beasley, 47 A.D.3d 639, 640, 850 N.Y.S.2d 140 [2008] ).

  2. People v. Peterson

    2011 N.Y. Slip Op. 6952 (N.Y. App. Div. 2011)

    46; People v LaPorte, 53 AD3d 984, 985). County Court is vested with discretion to determine whether substantial justice dictates denial of a defendant's application for resentencing ( see People v LaPorte, 53 AD3d at 985; Peoplev Rivers , 43 AD3d 1247, 1247, lv dismissed 9 NY3d 993). We find that the court providently exercised its discretion and did not, as defendant contends, inappropriately shift the burden of proof (see Peoplev Colon , 77 AD3d 849, 850, lv denied 15 NY3d 952; People v LaPorte, 53 AD3d at 985; People v Rivers, 43 AD3d at 1247; compare People v Beasley, 47 AD3d 639, 640).

  3. People v. Encarnacion

    101 A.D.3d 1746 (N.Y. App. Div. 2012)   Cited 1 times

    The court may also consider a defendant's subsequent convictions ( see People v. Dominguez, 88 A.D.3d 901, 901, 931 N.Y.S.2d 123,lv. denied18 N.Y.3d 882, 939 N.Y.S.2d 752, 963 N.E.2d 129;People v. Vega, 40 A.D.3d 1020, 1020, 836 N.Y.S.2d 685,lv. dismissed9 N.Y.3d 852, 840 N.Y.S.2d 779, 872 N.E.2d 892;People v. Gonzalez, 29 A.D.3d 400, 400, 815 N.Y.S.2d 75,lv. denied7 N.Y.3d 867, 824 N.Y.S.2d 612, 857 N.E.2d 1143). In short, “the court is vested with the discretion to deny an application for resentencing if ‘substantial justice dictates that the application should be denied’ ” ( People v. Rivers, 43 A.D.3d 1247, 1247, 842 N.Y.S.2d 611,lv. dismissed9 N.Y.3d 993, 848 N.Y.S.2d 610, 878 N.E.2d 1026, quoting L. 2004, ch. 738, § 23), and we conclude that this is such a case. Only five years after his drug conviction, defendant stabbed a fellow inmate to death, for which he was convicted of murder in the second degree and promoting prison contraband in the first degree.

  4. People v. Rivers

    878 N.E.2d 1026 (N.Y. 2007)

    November 1, 2007. Appeal from the 3d Dept: 43 AD3d 1247 (Schenectady). Pigott, J.

  5. People v. Davis

    128 A.D.3d 1269 (N.Y. App. Div. 2015)   Cited 3 times

    Pursuant to the Drug Law Reform Act, eligible defendants shall be resentenced unless “substantial justice dictates that the application should be denied” (L. 2004, ch. 738 § 23; see People v. Peterson, 88 A.D.3d 1026, 1027, 930 N.Y.S.2d 497 [2011] ). Further, “County Court is vested with discretion to determine whether substantial justice dictates denial of a defendant's application for resentencing” (People v. Peterson, 88 A.D.3d at 1027, 930 N.Y.S.2d 497 [citation omitted]; see People v. Rivers, 43 A.D.3d 1247, 1247, 842 N.Y.S.2d 611 [2007], lv. dismissed 9 N.Y.3d 993, 848 N.Y.S.2d 610, 878 N.E.2d 1026 [2007] ). The record reflects that defendant has a lengthy criminal history dating back to 1987, including several felony convictions.

  6. People v. Irvin

    96 A.D.3d 1453 (N.Y. App. Div. 2012)   Cited 2 times

    MEMORANDUM:On defendant's appeal from an order denying his application for resentencing pursuant to the 2009 Drug Law Reform Act ( see CPL 440.46), the People correctly concede that defendant's status as a reincarcerated parole violator did not render him ineligible to apply for resentencing ( see People v. Paulin, 17 N.Y.3d 238, 242, 929 N.Y.S.2d 36, 952 N.E.2d 1028;People v. Cobb, 90 A.D.3d 779, 934 N.Y.S.2d 349;People v. Wallace, 87 A.D.3d 824, 824, 928 N.Y.S.2d 802). Although County Court also denied his application on the ground that substantial justice dictated that the application be denied, we conclude that the court erred in making that determination without the benefit of a hearing ( cf. People v. Beasley, 47 A.D.3d 639, 640–641, 850 N.Y.S.2d 140;People v. Rivers, 43 A.D.3d 1247, 1247–1248, 842 N.Y.S.2d 611,lv. dismissed9 N.Y.3d 993, 848 N.Y.S.2d 610, 878 N.E.2d 1026). At the very least, the court should have permitted defendant and his attorney to appear and explain “ ‘why resentencing was warranted’ ” ( People v. Morales, 46 A.D.3d 1395, 1395, 848 N.Y.S.2d 486,lv. dismissed10 N.Y.3d 768, 854 N.Y.S.2d 330, 883 N.E.2d 1265). We therefore reverse the order and remit the matter to County Court for further proceedings on defendant's application for resentencing pursuant to CPL 440.46.

  7. People v. Carpenter

    86 A.D.3d 721 (N.Y. App. Div. 2011)   Cited 5 times

    However, the court placed the reasons for its determination on the record and appropriately considered the relevant factors, including defendant's criminal and disciplinary history, the circumstances underlying his conviction and original sentence, and his accomplishments while incarcerated. Accordingly, we find no basis to disturb the denial of defendant's motion for resentencing ( see People v La Porte, 53 AD3d 984, 985; People v Rivers, 43 AD3d 1247, 1247-1248, lv dismissed 9 NY3d 993). Ordered that the order is affirmed.

  8. People v. Perez

    57 A.D.3d 921 (N.Y. App. Div. 2008)   Cited 7 times

    Moreover, the 2005 DLRA expressly permits the court to consider the institutional record of confinement of the person seeking resentencing ( see Drug Law Reform Act, L 2005, ch 643, § 1; People v Flores, 50 AD3d 1156; People v Vega, 40 AD3d 1020, 1020-1021). Here, during approximately six years of incarceration, the defendant received disciplinary tickets for six tier III and 10 tier II infractions, which included testing positive for cocaine use, possession of heroin, fighting with a fellow inmate, possession of a sharpened metal rod known as a "shank," and possession of gang-related materials. Under these circumstances, the court properly concluded that substantial justice dictated the denial of the defendant's resentencing motion ( see L 2005, ch 643, § 1; People v Curry, 52 AD3d 732; People v Flores, 50 AD3d 1156, 1157; People v Stamps, 50 AD3d 827, 827-828; People v Rivers, 43 AD3d 1247; People v Vega, 40 AD3d 1020, 1020-1021; People v Sanders, 36 AD3d 944). [ See 18 Misc 3d 1119(A), 2008 NY Slip Op 50128(U).]

  9. People v. Porte

    53 A.D.3d 984 (N.Y. App. Div. 2008)   Cited 8 times

    Following a hearing, County Court denied his application and he now appeals. Section 23 of the Drug Law Reform Act of 2004 provides, in pertinent part, that the court should grant a resentencing application "unless substantial justice dictates that the application should be denied" ( See People v Rivers, 43 AD3d 1247, 1247-1248, lv dismissed 9 NY3d 993; People v Vasquez, 41 AD3d 111, 111, lv dismissed 9 NY3d 870). Here, we find that County Court providently exercised its discretion.

  10. People v. Flores

    50 A.D.3d 1156 (N.Y. App. Div. 2008)   Cited 28 times

    The Supreme Court, after a hearing, providently exercised its discretion in denying the defendant's application to be resentenced pursuant to the 2005 DLRA. The defendant is a second felony offender with a prior criminal history dating back to 1994, including a prior violent felony conviction ( see People v Alvarado, 48 AD3d 329; People v Sanders, 36 AD3d 944, 946-947). Moreover, despite the defendant's positive achievements while incarcerated, he also has a poor prison disciplinary record ( see People v Rivers, 43 AD3d 1247, 1248; People v Vega, 40 AD3d 1020, 1020-1021). The 2005 DLRA expressly provides that the court may consider the institutional record of confinement of a person seeking to be resentenced thereunder ( see Drug Law Reform Act, L 2005, ch 643, § 1; People v Vega, 40 AD3d at 1020-1021; People v Sanders, 36 AD3d 944; People v Quinones, 11 Misc 3d 582, 600 n 15 [2005]).