People v. Baldwin

96 A.D.3d 772, 945 N.Y.S.2d 578

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 6, 2012
• Status: Published

Opinion

Appeal by the defendant from an order of the Supreme Court, Queens County (Hanophy, J.), dated April 29, 2010, which denied his motion for resentencing pursuant to CPL 440.46 on his conviction of criminal sale of a controlled substance in the third degree, which sentence was originally imposed, upon his plea of guilty, on May 9, 2002.

Ordered that the order is affirmed.

The Supreme Court providently exercised its discretion in denying the defendant’s motion for resentencing pursuant to CPL 440.46. On May 9, 2002, the defendant was sentenced as a second felony offender, and he has an extensive, continuous criminal history in New York dating from 1995. With regard to the instant conviction, the defendant violated the provisions of his plea agreement in 2002 when he failed to enter into and remain in a residential drug treatment program. Accordingly, under the terms of the agreement, he was sentenced to an indeterminate term of 472 to 9 years of imprisonment. According to the record before this Court, during the course of his incarceration, the defendant received disciplinary tickets for 27 tier III infractions and 23 tier II infractions, including tickets for, among other things, violent conduct, fighting, threats, use of drugs, possession of contraband, and smuggling. Under these circumstances, substantial justice dictated that the defendant’s motion be denied (see People v Karim, 85 AD3d 943, 944 [2011]; People v Avila, 84 AD3d 1259, 1259-1260 [2011]; People v Witkowski, 82 AD3d 913, 913 [2011]; People v Pipkin, 77 AD3d 770, 770-771 [2010]; People v Winfield, 59 AD3d 747, 747-748 [2009]). Dillon, J.P., Dickerson, Austin and Miller, JJ., concur.