People v. Bethea

2016 NY Slip Op 8244, 145 A.D.3d 738, 41 N.Y.S.3d 899

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 7, 2016
• Docket: 2014-09850
• Status: Published

Opinion

Appeal by the defendant from an order of the Supreme Court, Kings County (Dowling, J.), dated September 24, 2014, which, after a hearing, denied his motion to be resentenced 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 a jury verdict, on October 5, 2004.

Ordered that the order is affirmed.

A defendant who is eligible for resentencing pursuant to CPL 440.46 enjoys a statutory presumption in favor of resentencing (see People v Duke, 132 AD3d 893 [2015]; People v Brown, 115 AD3d 155, 156-157 [2014] aff'd 25 NY3d 247 [2015]; People v Beasley, 47 AD3d 639, 641 [2008]). However, resentencing is not automatic, and the determination is left to the discretion of the Supreme Court (see People v Duke, 132 AD3d 893 [2015]; People v Karim, 85 AD3d 943, 944 [2011]; People v Beasley, 47 AD3d at 641).

Here, in light of the defendant’s extensive and continuous criminal history, which includes a conviction of manslaughter in the first degree, his lackluster institutional disciplinary record, and his arrest for criminal possession of a weapon while on parole, the Supreme Court providently exercised its discretion in denying his motion for resentencing pursuant to CPL 440.46 (see People v Duke, 132 AD3d 893 [2015]; People v Peterson, 88 AD3d 1026, 1027 [2011]; People v Overton, 86 AD3d 4, 16 [2011]; People v Karim, 85 AD3d at 944).

Dillon, J.P., Dickerson, Hinds-Radix and Maltese, JJ., concur.