People v. Cruz

96 A.D.3d 693, 947 N.Y.S.2d 115

Opinion

Order, Supreme Court, Bronx County (Robert G. Seewald, J.), entered February 16, 2010, which denied defendant’s CPL 440.46 motion for resentencing, unanimously reversed, as a matter of discretion in the interest of justice, the motion granted, and the matter remanded for further proceedings consistent with this decision to include specifying and informing defendant of a proposed sentence.

The record of the resentencing proceeding does not dictate denial of resentencing on substantial justice grounds (see e.g. People v Milton, 86 AD3d 478 [2011]). The court denied the motion primarily on the ground that defendant absconded prior to trial and remained at large for six years. However, we find that this misconduct may have been outweighed by mitigating factors.

Although defendant is a second felony drug offender, both his predicate felony and the underlying offense involved street level drug sales, and the remainder of his criminal history is insignificant. Defendant has no history of violence, and his prison disciplinary record is relatively minor. While incarcerated, defendant participated extensively in educational and training programs and received recommendations for potential future employment. Thus, we remand the matter for reconsideration of defendant’s motion.

We leave the length of the new sentence to the independent discretion of Supreme Court. Concur — Mazzarelli, J.R, Catterson, Moskowitz, Manzanet-Daniels and Román, JJ. [Prior Case History: 26 Misc 3d 1233(A), 2010 NY Slip Op 50362(U).]