Opinion
2011-09-22
The PEOPLE of the State of New York, Respondent,v.Felix SUYA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.Robert T. Johnson, District Attorney, Bronx (Jason S. Whitehead of counsel), for respondent.
Order, Supreme Court, Bronx County (Richard Lee Price, J.), entered on or about January 20, 2011, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.
As conceded by the people, defendant's 1999 robbery conviction did not constitute an “exclusion offense” that rendered him ineligible for resentencing pursuant to CPL 440.46. Nevertheless, the court properly exercised its discretion in concluding that substantial justice dictated denial of defendant's application for resentencing ( see 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] ). Defendant's criminal record is very serious and includes violent crimes. *739 In addition, his prison disciplinary record is extraordinarily poor.
SAXE, J.P., FRIEDMAN, ACOSTA, DeGRASSE, ABDUS–SALAAM, JJ., concur.