People v. Rodriguez

2019 NY Slip Op 2979

Opinion

People v Rodriguez (2019 NY Slip Op 02979)

People v Rodriguez

2019 NY Slip Op 02979

Decided on April 23, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 23, 2019
Friedman, J.P., Sweeny, Tom, Moulton, JJ.

9042 11050/93 10083/91

[*1]The People of the State of New York, Respondent,

v

Roberto Rodriguez, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.

Order, Supreme Court, New York County (Juan M. Merchan, J.), entered on or about September 21, 2017, which denied defendant's motion for resentencing pursuant to the Drug Law Reform Acts of 2005 and 2009, unanimously affirmed.

The motion court properly determined that defendant was ineligible for resentencing on his A-II felony conviction. We see no reason to depart from our previous holdings, in which we rejected statutory, public policy and constitutional arguments similar to those raised here (see e.g. People v Soroa, 166 AD3d 434 [1st Dept 2018]; People v Moore, 159 AD3d 444 [1st Dept 2018]).

Although it is undisputed that defendant was eligible to apply for resentencing on his class B felony conviction, the court providently exercised its discretion in determining that substantial justice dictated the denial of that application (see People v Sosa, 18 NY3d 436, 442-443 [2012]; People v Paulin, 17 NY3d 238, 244 [2011]), particularly in light of defendant's criminal history, including the sex offenses defendant committed against an 11-year-old victim after defendant was paroled on one of his drug convictions.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 23, 2019

CLERK