People v. Browne

• Decision Date: 26 June 2013
• Citation: 966 N.Y.S.2d 873,2013 N.Y. Slip Op. 04823,107 A.D.3d 1013
• Parties: The PEOPLE, etc., respondent, v. Stephen BROWNE, appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1013

966 N.Y.S.2d 873

2013 N.Y. Slip Op. 04823

The PEOPLE, etc., respondent,

v.Stephen BROWNE, appellant.

Supreme Court, Appellate Division, Second Department, New York.

June 26, 2013.

Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Terrence F. Heller of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Guzman, J.), dated August 30, 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 his plea of guilty, on June 30, 1998.

ORDERED that the order is affirmed.

Considering the defendant's extensive criminal history, pattern of committing crimes while on parole, and institutional record, which included 11 infractions, 6 of which were Tier III infractions, the Supreme Court properly determined that substantial justice dictated the denial of the defendant's motion for resentencing pursuant to CPL 440.46 ( see People v. Cabrera, 103 A.D.3d 748, 959 N.Y.S.2d 534;People v. Franklin, 101 A.D.3d 1148, 956 N.Y.S.2d 494,lv. denied20 N.Y.3d 1098, 965 N.Y.S.2d 794, 988 N.E.2d 532;People v. Barnes, 95 A.D.3d 1029, 1030, 943 N.Y.S.2d 753). Contrary to the defendant's contention, the evidence of his rehabilitation does not outweigh his criminal history, institutional record, and pattern of successive reoffenses while on parole ( see *874People v. Cabrera, 103 A.D.3d at 748–749, 959 N.Y.S.2d 534;People v. Franklin, 101 A.D.3d at 1149, 956 N.Y.S.2d 494,lv. denied20 N.Y.3d 1098, 965 N.Y.S.2d 794, 988 N.E.2d 532).

BALKIN, J.P., LEVENTHAL, LOTT and SGROI, JJ., concur.