People v. Vidal

111 A.D.3d 967, 975 N.Y.S.2d 468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 2013
• Status: Published

Opinion

Appeal by the defendant from an order of the Supreme Court, Kings County (Ferdinand, J.), dated December 19, 2011, which denied his motion to be resentenced 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 a jury verdict, on February 22, 1995.

Ordered that the order is affirmed.

The Supreme Court providently exercised its discretion in denying the defendant’s motion to be resentenced pursuant to CPL 440.46. The defendant was convicted of two felonies prior to the instant conviction, and incurred 16 disciplinary violations, including eight tier III infractions, while incarcerated. The defendant was convicted of two new crimes for acts committed while he was on parole for the instant conviction, and he again violated the terms and conditions of his parole after filing his motion to be resentenced. Under these circumstances, substantial justice dictated that his motion be denied (see People v Golo, 109 AD3d 623 [2013]; People v Gutierrez, 109 AD3d 486 [2013]; People v Browne, 107 AD3d 1013 [2013]; People v Milland, 103 AD3d 669, 670 [2013]). Eng, PJ., Dickerson, Hall and Austin, JJ., concur.