Opinion
2012-07-11
The PEOPLE, etc., respondent, v. Juan SOTO, appellant.
Steven Banks, New York, N.Y. (David Crow of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Terrence F. Heller of counsel), for respondent.
Steven Banks, New York, N.Y. (David Crow of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Terrence F. Heller of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Gubbay, J.), dated December 10, 2010, which denied his motion for resentencing pursuant to CPL 440.46 on his conviction of criminal possession of a controlled substance in the third degree, which sentence was originally imposed, upon his plea of guilty, on February 2, 2006.
ORDERED that the order is affirmed.
The Supreme Court properly denied the defendant's motion for resentencing pursuant to CPL 440.46. Contrary to the defendant's contention, the record conclusively demonstrates that he was previously adjudicated a second violent felony offender, and that he thus has a predicate felony conviction for an “exclusion offense,” rendering him ineligible to apply for resentencing (CPL 440.46[5][b] ).