People v. Carpenter

• Decision Date: 14 July 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Gerald L. CARPENTER, Appellant.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 721

926 N.Y.S.2d 836

2011 N.Y. Slip Op. 05902

The PEOPLE of the State of New York, Respondent,

v.Gerald L. CARPENTER, Appellant.

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

July 14, 2011.

OPINION TEXT STARTS HEREArlene Levinson, Public Defender, Hudson (Jessica D. Howser of counsel), for appellant.Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), for respondent.Before: MERCURE, J.P., SPAIN, KAVANAGH, GARRY and EGAN JR., JJ.GARRY, J.

Appeal from an order of the County Court of Columbia County (Nichols, J.), entered May 13, 2010, which denied defendant's motion for resentencing pursuant to CPL 440.46.

Defendant was convicted in 2005 of criminal possession of a controlled substance in the third degree and was sentenced to 10 to 20 years in prison. His conviction and sentence were affirmed by this Court on appeal (51 A.D.3d 1149, 857 N.Y.S.2d 344 [2008], lv. denied 11 N.Y.3d 786, 866 N.Y.S.2d 613, 896 N.E.2d 99 [2008] ). Defendant subsequently moved to be resentenced pursuant to CPL 440.46. Following a hearing, County Court denied the motion and defendant now appeals.

We affirm. Upon determining that a defendant is eligible for resentencing pursuant to CPL 440.46, a court shall determine the appropriate determinate sentence “unless substantial justice dictates that the application should be denied” (L 2004, ch 738, § 23; see CPL 440.46[3] ). To the extent that any weight was afforded to this Court's previous denial of defendant's claim that his sentence was harsh and excessive (51 A.D.3d at 1151, 857 N.Y.S.2d 344), this was error. However, the court placed the reasons for its determination on the record and appropriately considered the relevant factors, including defendant's criminal and disciplinary history, the circumstances underlying his conviction and original sentence, and his accomplishments while incarcerated. Accordingly, we find no basis to disturb the denial of defendant's motion for resentencing ( see People v. La Porte, 53 A.D.3d 984, 985, 863 N.Y.S.2d 113 [2008]; People v. Rivers, 43 A.D.3d 1247, 1247–1248, 842 N.Y.S.2d 611 [2007], lv. dismissed 9 N.Y.3d 993, 848 N.Y.S.2d 610, 878 N.E.2d 1026 [2007] ).

ORDERED that the order is affirmed.

MERCURE, J.P., SPAIN, KAVANAGH and EGAN JR., JJ., concur.