People v. McDowell

124 A.D.3d 419, 998 N.Y.S.2d 190

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 6, 2015
• Docket: 13893 7322N/02
• Status: Published

Opinion

Order, Supreme Court, New York County (Marcy L. Kahn, J.), entered on or about May 25, 2012, which denied defendant’s CPL 440.46 motion for resentencing, unanimously affirmed.

The resentencing court providently exercised its discretion in determining that substantial justice required the denial of defendant’s motion. In addition to the underlying drug crime, defendant has a history of violent crimes, the most recent of which involved a stabbing, committed while defendant was on parole. This demonstrates defendant’s inability to control his behavior (see e.g. People v Neely, 99 AD3d 578 [1st Dept 2012], lv denied 20 NY3d 1011 [2013]). Defendant’s criminal history outweighs his positive prison record, as his prior incarceration and completion of rehabilitative programs did not stop him from reverting to violence in the past. Thus, the resentencing court correctly noted that defendant’s and the community’s interests would best be served by ongoing parole supervision, rather than by a reduction in sentence that would leave defendant unsupervised. Defendant also absconded during trial for the underlying offense in this case after providing the court with false contact information, which further weighs against resentencing.

Concur— Mazzarelli, J.P, DeGrasse, Manzanet-Daniels, Feinman and Gische, JJ.