People v. Karim
| Decision Date | 14 June 2011 |
| Citation | 2011 N.Y. Slip Op. 05297,925 N.Y.S.2d 835,85 A.D.3d 943 |
| Parties | The PEOPLE, etc., respondent,v.Abdul KARIM, appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERELynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel; Tiffany L. Henry on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Guzman, J.), dated August 20, 2010, which, after a hearing, denied his motion for resentencing pursuant to CPL 440.46 on his convictions of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree (two counts), and criminal possession of a controlled substance in the fourth degree, which sentence was originally imposed, upon a jury verdict, on June 23, 1988.
ORDERED that the order is affirmed.
Pursuant to CPL 440.46, upon a resentencing application by a person in the custody of the Department of Corrections, the motion court may “consider any facts or circumstances relevant to the imposition of a new sentence which are submitted by such person or the people and may, in addition, consider the institutional record of confinement of such person ... Upon its review of the submissions and the findings of fact made in connection with the application, the court shall, unless substantial justice dictates that the application should be denied, in which event the court shall issue an order denying the application, specify and inform such person of the term of a determinate sentence of imprisonment it would impose upon such conviction” (L. 2004, ch. 738, § 23; see CPL 440.46[3] ). Inasmuch as a qualifying motion pursuant to CPL 440.46 “should be granted unless ‘substantial justice dictates that [it] should be denied’ ” ( People v. Braithwaite, 62 A.D.3d 1019, 1021, 880 N.Y.S.2d 669, quoting L. 2004, ch. 738, § 23), “consistent with the statutory language, case law indicates a presumption in favor of granting a motion for resentencing relief absent a showing that substantial justice dictates the denial thereof” ( People v. Beasley, 47 A.D.3d 639, 641, 850 N.Y.S.2d 140).
The defendant is a second felony offender with a prior violent felony ( see People v. Flores, 50 A.D.3d at 1156, 856 N.Y.S.2d 668). The instant offense was committed when the defendant was on parole ( see People v. Rivera, 84...
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