People v. Miller
| Court | New York Supreme Court Appellate Division |
| Citation | 2011 N.Y. Slip Op. 07658,88 A.D.3d 1015,931 N.Y.S.2d 391 |
| Parties | The PEOPLE, etc., respondent,v.Jamar MILLER, appellant. |
| Decision Date | 25 October 2011 |
88 A.D.3d 1015
931 N.Y.S.2d 391
2011 N.Y. Slip Op. 07658
The PEOPLE, etc., respondent,
v.
Jamar MILLER, appellant.
Supreme Court, Appellate Division, Second Department, New York.
Oct. 25, 2011.
[931 N.Y.S.2d 392]
Jillian S. Harrington, New York, N.Y., for appellant.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane Eisner of counsel; Reuben Arnold on the brief), for respondent.PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.[88 A.D.3d 1015] Appeal by the defendant from an order of the Supreme Court, Kings County (Gerges, J.), entered June 11, 2010, which denied his motion to be resentenced pursuant to CPL 440.46 on his [88 A.D.3d 1016] conviction of criminal sale of a controlled substance in the third degree, which sentence was originally imposed, upon his plea of guilty, on March 22, 2005.
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. Beasley, 47 A.D.3d 639, 641, 850 N.Y.S.2d 140; see CPL 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 ( see People v. Beasley, 47 A.D.3d at 641, 850 N.Y.S.2d 140; People v. Vega, 40 A.D.3d 1020, 1020–1021, 836 N.Y.S.2d 685). 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, lv. denied 17 N.Y.3d 820, 929 N.Y.S.2d 809, 954 N.E.2d 100; People v. Dennis, 84 A.D.3d 834, 835, 921 N.Y.S.2d 879, lv. denied 17 N.Y.3d 805, 929 N.Y.S.2d 565, 953 N.E.2d 803).
Here, the Supreme Court properly considered, inter alia, the defendant's criminal history, including his juvenile delinquency adjudication for acts which, if committed by an adult, would have constituted the crime of manslaughter in the second degree ( see Family Ct. Act § 381.2[2]; see also People v. Sapp, 169 A.D.2d 659, 660, 565...
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Objections & related procedures
...is to no avail if not followed by speciic objection). Objecting on an incorrect ground does not preserve an objection. People v. Miller , 88 A.D.3d 1015, 931 N.Y.S.2d 391 (2d Dept. 2011). CAUTION State the correct objection. A speciic objection made on the wrong ground may waive an objectio......
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Objections & related procedures
...pdf (last visited Jan. 4, 2020). Objecting on an incorrect ground does not preserve an objection. People v. Miller , 88 A.D.3d 1015, 931 N.Y.S.2d 391 (2d Dept. 2011). CAUTION State the correct objection. A speciic objection made on the wrong ground may waive an objection, since appellate co......
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Objections & related procedures
...to no avail if not followed by specific objection). Objecting on an incorrect ground does not preserve an objection. People v. Miller , 88 A.D.3d 1015, 931 N.Y.S.2d 391 (2d Dept. 2011). CAUTION State the correct objection. A specific objection made on the wrong ground may waive an objection......
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Objections & related procedures
...(last visited Jan. 13, 2022). Objecting on an incorrect ground does not preserve an objection. People v. Miller , 88 A.D.3d 1015, 931 N.Y.S.2d 391 (2d Dept. 2011). CA UTION: State the correct objection. A specific objection made on the wrong ground may waive an objection since appellate co......