People v. Davis

• Decision Date: 28 May 2015
• Docket Number: 105306
• Citation: 9 N.Y.S.3d 732,2015 N.Y. Slip Op. 04520,128 A.D.3d 1269
• Parties: The PEOPLE of the State of New York, Respondent, v. Jace DAVIS, Appellant.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 1269

9 N.Y.S.3d 732

2015 N.Y. Slip Op. 04520

The PEOPLE of the State of New York, Respondent

v.Jace DAVIS, Appellant.

105306

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

May 28, 2015.

Norbert A. Higgins, Binghamton, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

Before: LAHTINEN, J.P., ROSE, DEVINE and CLARK, JJ.

Opinion

DEVINE, J.

Appeal from an order of the County Court of Broome County (Smith, J.), entered October 11, 2012, which denied defendant's application for resentencing pursuant to CPL 440.46.

In 2002, defendant was convicted of criminal sale of a controlled substance in the third degree and was sentenced to 8 to 16 years in prison. In 2012, defendant made an application to be resentenced under the Drug Law Reform Act of 2009. County Court denied the application and defendant appeals.

We affirm. Pursuant to the Drug Law Reform Act, eligible defendants shall be resentenced unless “substantial justice dictates that the application should be denied” (L. 2004, ch. 738 § 23; see People v. Peterson, 88 A.D.3d 1026, 1027, 930 N.Y.S.2d 497 [2011] ). Further, “County Court is vested with discretion to determine whether substantial justice dictates denial of a defendant's application for resentencing” (People v. Peterson, 88 A.D.3d at 1027, 930 N.Y.S.2d 497 [citation omitted]; see People v. Rivers, 43 A.D.3d 1247, 1247, 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] ). The record reflects that defendant has a lengthy criminal history dating back to 1987, including several felony convictions. Moreover, since his 2002 conviction, he has violated parole three times, the final violation resulting in a 2011 conviction for tampering with physical evidence. Notwithstanding his allegedly positive institutional history, we cannot say that County Court abused its discretion in denying defendant's application for resentencing under these circumstances (see People v. Buckery, 98 A.D.3d 1191, 1192, 950 N.Y.S.2d 915 [2012], lv. denied 20 N.Y.3d 1009, 960 N.Y.S.2d 352, 984 N.E.2d 327 [2013] ; People v. Peterson, 88 A.D.3d at 1027, 930 N.Y.S.2d 497 ; People v. LaPorte, 53 A.D.3d 984, 985, 863 N.Y.S.2d 113 [2008] ).

ORDERED that the order is affirmed.

LAHTINEN, J.P., ROSE and CLARK, JJ., concur.