People v. Dominguez

• Decision Date: 18 October 2011
• Citation: 88 A.D.3d 901,2011 N.Y. Slip Op. 07440,931 N.Y.S.2d 123
• Parties: The PEOPLE, etc., respondent,v.Robert DOMINGUEZ, appellant.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 901
931 N.Y.S.2d 123
2011 N.Y. Slip Op. 07440

The PEOPLE, etc., respondent,
v.
Robert DOMINGUEZ, appellant.

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

Oct. 18, 2011.

[931 N.Y.S.2d 123]

Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Caroline R. Donhauser, and Terrance F. Heller of counsel), for respondent.

[931 N.Y.S.2d 124]

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.

[88 A.D.3d 901] Appeal by the defendant from an order of the Supreme Court, Kings County (Mangano, Jr., J.), dated July 28, 2008, which granted the People's motion, in effect, for leave to renew their opposition to the defendant's motion for resentencing pursuant to the Drug Law Reform Act of 2005 (L. 2005, ch. 643, § 1), on his conviction of criminal possession of a controlled substance in the second degree, originally rendered, upon his plea of guilty, on May 1, 2003, which was granted in an order of the same court dated November 15, 2006, to the extent of specifying and informing the defendant of a proposed resentence, and upon renewal, denied the defendant's motion.

ORDERED that the order is affirmed.

The defendant, who was convicted of criminal possession of a controlled substance in the second degree in 2003, moved for resentencing under the Drug Law Reform Act of 2005 (hereinafter 2005 DLRA) (L 2005, ch 643, § 1). The Supreme Court initially granted the motion to the extent of specifying and informing the defendant of a proposed resentence. The People then moved, in effect, for leave to renew their opposition to the defendant's resentencing motion. The Supreme Court providently exercised its discretion in granting the People's motion, in effect, for leave to renew, made during the pendency of the resentencing proceeding, based upon new facts ( cf. People v. Chetrick, 255 A.D.2d 392, 681 N.Y.S.2d 287; People v. Petrocelli, 232 A.D.2d 661, 648 N.Y.S.2d 992). Further, upon renewal, the Supreme Court providently exercised its discretion in denying the defendant's motion.

A motion for resentencing pursuant to the 2005 DLRA should be granted unless “substantial justice dictates that [it] should be denied” (L. 2005, ch. 643, § 1; see People v. Love, 46 A.D.3d 919, 920–921, 849 N.Y.S.2d 289). In making its determination, a court may consider any relevant circumstances, including a defendant's criminal history,...