People v. Burnett

Appellate Division of the Supreme Court of New York

People v. Burnett

89 A.D.3d 958, 932 N.Y.2d 705

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 15, 2011

StatusPublished

This text of 89 A.D.3d 958 (People v. Burnett) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Burnett, 89 A.D.3d 958, 932 N.Y.2d 705 (N.Y. Ct. App. 2011).

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Opinion

[959]*959Even if the defendant were eligible for resentencing pursuant to the Drug Law Reform Act of 2009, codified in CPL 440.46, substantial justice dictated the denial of his motion to be resentenced. After the defendant pleaded guilty in 1997 to criminal sale of a controlled substance in the third degree, he failed to return for sentencing. The defendant only returned to court, involuntarily, after 11 years upon being arrested for burglary, and was convicted in late 2009 of burglary in the second degree, a violent felony (see Penal Law § 70.02 [1] [b]; § 140.25). Accordingly, under these circumstances, even though the defendant’s conduct while incarcerated has been relatively positive, the Supreme Court properly denied the defendant’s motion to be resentenced pursuant to CPL 440.46 (see People v Hickman, 85 AD3d 1057 [2011]; People v Rodriguez, 83 AD3d 419 [2011]; People v Ciriaco, 46 AD3d 374 [2007]; People v Marte, 44 AD3d 442 [2007]). Rivera, J.P, Angiolillo, Belen and Roman, JJ., concur. [Prior Case History: 28 Misc 3d 928.]

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[959]*959Even if the defendant were eligible for resentencing pursuant to the Drug Law Reform Act of 2009, codified in CPL 440.46, substantial justice dictated the denial of his motion to be resentenced. After the defendant pleaded guilty in 1997 to criminal sale of a controlled substance in the third degree, he failed to return for sentencing. The defendant only returned to court, involuntarily, after 11 years upon being arrested for burglary, and was convicted in late 2009 of burglary in the second degree, a violent felony (see Penal Law § 70.02 [1] [b]; § 140.25). Accordingly, under these circumstances, even though the defendant’s conduct while incarcerated has been relatively positive, the Supreme Court properly denied the defendant’s motion to be resentenced pursuant to CPL 440.46 (see People v Hickman, 85 AD3d 1057 [2011]; People v Rodriguez, 83 AD3d 419 [2011]; People v Ciriaco, 46 AD3d 374 [2007]; People v Marte, 44 AD3d 442 [2007]). Rivera, J.P, Angiolillo, Belen and Roman, JJ., concur. [Prior Case History: 28 Misc 3d 928.]

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Bluebook (online)

89 A.D.3d 958, 932 N.Y.2d 705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-burnett-nyappdiv-2011.

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