People v. Gutierrez

Appellate Division of the Supreme Court of New York

People v. Gutierrez

109 A.D.3d 486, 970 N.Y.S.2d 85

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

DecidedAugust 7, 2013

StatusPublished

This text of 109 A.D.3d 486 (People v. Gutierrez) 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. Gutierrez, 109 A.D.3d 486, 970 N.Y.S.2d 85 (N.Y. Ct. App. 2013).

Pincite

Opinion

Appeal by the defendant from an order of the Supreme Court, Kings County (Ozzi, J.), dated May 2, 2012, 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 29, 1997.

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. The defendant committed the instant offense while on parole for a previous offense, was convicted of two felonies and incurred 26 disciplinary violations, including 12 tier III infractions, while incarcerated, and violated parole on four separate occasions after being released on parole during his cur[487]*487rent sentence. The defendant was convicted of three new crimes arising out of conduct that occurred while he was released on parole during his current sentence. Under the circumstances, notwithstanding the defendant’s positive achievements while incarcerated, substantial justice dictated that his motion be denied (see People v Cabrera, 103 AD3d 748, 748-749 [2013]; People v Darwin, 102 AD3d 807, 808 [2013]; People v Franklin, 101 AD3d 1148, 1148-1149 [2012]). Balkin, J.E, Hall, Lott and Sgroi, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal by the defendant from an order of the Supreme Court, Kings County (Ozzi, J.), dated May 2, 2012, 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 29, 1997.

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. The defendant committed the instant offense while on parole for a previous offense, was convicted of two felonies and incurred 26 disciplinary violations, including 12 tier III infractions, while incarcerated, and violated parole on four separate occasions after being released on parole during his cur[487]*487rent sentence. The defendant was convicted of three new crimes arising out of conduct that occurred while he was released on parole during his current sentence. Under the circumstances, notwithstanding the defendant’s positive achievements while incarcerated, substantial justice dictated that his motion be denied (see People v Cabrera, 103 AD3d 748, 748-749 [2013]; People v Darwin, 102 AD3d 807, 808 [2013]; People v Franklin, 101 AD3d 1148, 1148-1149 [2012]). Balkin, J.E, Hall, Lott and Sgroi, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

109 A.D.3d 486, 970 N.Y.S.2d 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gutierrez-nyappdiv-2013.

Opinion

Related

Cite This Page — Counsel Stack