People v. Franklin

• Decision Date: 26 December 2012
• Citation: 2012 N.Y. Slip Op. 09083,956 N.Y.S.2d 494,101 A.D.3d 1148
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE, etc., respondent, v. Lashawn FRANKLIN, appellant.

101 A.D.3d 1148

956 N.Y.S.2d 494

2012 N.Y. Slip Op. 09083

The PEOPLE, etc., respondent,

v.Lashawn FRANKLIN, appellant.

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

Dec. 26, 2012.

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

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Gretchen Robinson of counsel), for respondent.

RANDALL T. ENG, P.J., DANIEL D. ANGIOLILLO, SANDRA L. SGROI, and SYLVIA HINDS–RADIX, JJ.

Appeal by the defendant from an order of the Supreme Court, Queens County (Latella, J.), dated June 22, 2011, which, after a hearing, 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 December 9, 2002.

ORDERED that the order is affirmed.

“A defendant who is eligible for resentencing pursuant to CPL 440.46 enjoys ‘a presumption in favor of granting a motion for resentencing relief absent a showing that substantial justice dictates the denial thereof’ ” ( People v. Gonzalez, 96 A.D.3d 875, 876, 946 N.Y.S.2d 215, quoting People v. Beasley, 47 A.D.3d 639, 641, 850 N.Y.S.2d 140;seeCPL 440.46[3]; L. 2004, ch. 738, § 23). “However, resentencing is not automatic, and the determination is left to the discretion of the Supreme Court” ( People v. Gonzalez, 96 A.D.3d at 876, 946 N.Y.S.2d 215;see People v. Beasley, 47 A.D.3d at 641, 850 N.Y.S.2d 140). In exercising its discretion, a court may “consider any facts or circumstances relevant to the imposition of a new sentence which are submitted by [the defendant] or the people” (L. 2004, ch. 738, § 23), including the defendant's institutional record of confinement, the defendant's prior criminal history, the severity of the current offense, whether the defendant has shown remorse, and whether the defendant has a history of parole or probation violations ( see People v. Overton, 86 A.D.3d 4, 12, 923 N.Y.S.2d 619;People v. Avila, 84 A.D.3d 1259, 923 N.Y.S.2d 674). A defendant's status as a reincarcerated parole violator does not render him or her ineligible for relief pursuant to CPL 440.46 ( see People v. Paulin, 17 N.Y.3d 238, 241–242, 929 N.Y.S.2d 36, 952 N.E.2d 1028), but “may be relevant in determining whether substantial justice dictates that the application should be denied on the merits” ( People v. Phillips, 82 A.D.3d 1011, 1012, 919 N.Y.S.2d 88 [internal quotation marks omitted]; see People v. Brown, 84 A.D.3d 1262, 1263, 923 N.Y.S.2d 866).

Here, the defendant filed his motion to be resentenced after being reincarcerated on a parole violation stemming from his conviction of a narcotics felony committed while he was out on parole in connection with the instant offense. In addition to the instant narcotics felony, and the narcotics felony committed while on parole, the defendant had three prior felony convictions for...