People v. Encarnacion

• Court: New York Supreme Court Appellate Division
• Citation: 956 N.Y.S.2d 387,101 A.D.3d 1746,2012 N.Y. Slip Op. 09228
• Parties: The PEOPLE of the State of New York, Respondent, v. Bernabe ENCARNACION, Defendant–Appellant.
• Decision Date: 28 December 2012

101 A.D.3d 1746
956 N.Y.S.2d 387
2012 N.Y. Slip Op. 09228

The PEOPLE of the State of New York, Respondent,
v.
Bernabe ENCARNACION, Defendant–Appellant.

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

Dec. 28, 2012.

Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (Susan C. Azzarelli of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.

[956 N.Y.S.2d 388]

MEMORANDUM:

[101 A.D.3d 1746]Defendant appeals from an order denying his application for resentencing pursuant to the 2004 Drug Law Reform Act ( [DLRA–1] L. 2004, ch. 738, § 23). Defendant failed to preserve for our review his contention that County Court erred in failing to hold an evidentiary hearing inasmuch as he did not request such a hearing ( see id.; People v. Murray, 89 A.D.3d 567, 568, 933 N.Y.S.2d 15,lv. denied18 N.Y.3d 960, 944 N.Y.S.2d 489, 967 N.E.2d 714;[101 A.D.3d 1747]People v. Highsmith, 79 A.D.3d 1741, 1742, 917 N.Y.S.2d 791,lv. denied16 N.Y.3d 831, 921 N.Y.S.2d 195, 946 N.E.2d 183). In any event, that contention lacks merit. Defendant appeared with defense counsel before the court on the resentencing application, and defense counsel “ ‘explained to the court why resentencing was warranted’ ” ( People v. Morales, 46 A.D.3d 1395, 1395, 848 N.Y.S.2d 486,lv. dismissed10 N.Y.3d 768, 854 N.Y.S.2d 330, 883 N.E.2d 1265). The court also gave defendant the opportunity to address the court directly on his application for resentencing. Under those circumstances, “ ‘the hearing requirement of [DLRA–1] was met’ ” (id.;cf. People v. Irvin, 96 A.D.3d 1453, 1453, 945 N.Y.S.2d 907).

We reject the further contention of defendant that the court erred in denying his resentencing application. DLRA–1 provides that, in reviewing an application for resentencing, the court may consider “any facts or circumstances relevant to the imposition of a new sentence which are submitted by [the defendant] or the [P]eople and may, in addition, consider the institutional record of confinement of [the defendant]” (L. 2004, ch. 738, § 23). The court may also consider a defendant's subsequent convictions ( see People v. Dominguez, 88 A.D.3d 901, 901, 931 N.Y.S.2d 123,lv. denied18 N.Y.3d 882, 939 N.Y.S.2d 752, 963 N.E.2d 129;People v. Vega, 40 A.D.3d 1020, 1020, 836 N.Y.S.2d 685,lv. dismissed9 N.Y.3d 852, 840 N.Y.S.2d 779, 872 N.E.2d 892;People v. Gonzalez, 29 A.D.3d 400, 400, 815 N.Y.S.2d 75,lv. denied7 N.Y.3d 867, 824 N.Y.S.2d 612, 857 N.E.2d 1143). In short, “the court is vested with the discretion to deny an application for resentencing if ‘substantial justice...