People v. Parker
Citation | 967 N.Y.S.2d 763,107 A.D.3d 1017,2013 N.Y. Slip Op. 04831 |
Parties | The PEOPLE, etc., respondent, v. Anthony PARKER, appellant. |
Decision Date | 26 June 2013 |
Court | New York Supreme Court — Appellate Division |
107 A.D.3d 1017
967 N.Y.S.2d 763
2013 N.Y. Slip Op. 04831
The PEOPLE, etc., respondent,
v.
Anthony PARKER, appellant.
Supreme Court, Appellate Division, Second Department, New York.
June 26, 2013.
[967 N.Y.S.2d 764]
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Maria Park of counsel; G. Aaron Leibowitz on the brief), for respondent.
MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and JEFFREY A. COHEN, JJ.
[107 A.D.3d 1018]Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.), dated October 6, 2011, which, after a hearing, denied his motion to be
[967 N.Y.S.2d 765]
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 November 5, 2004.
ORDERED that the order is affirmed.
When a defendant is eligible for resentencing pursuant to CPL 440.46, there is “ ‘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). Relevant considerations include the defendant's status as a probation or parole violator as a consequence of the conviction for which resentencing is sought ( see People v. Paulin, 17 N.Y.3d 238, 244, 929 N.Y.S.2d 36, 952 N.E.2d 1028;People v. Cabrera, 103 A.D.3d 748, 959 N.Y.S.2d 534;People v. Curry, 52 A.D.3d 732, 860 N.Y.S.2d 610), and the...
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People v. Parker
...150974 N.Y.S.2d 325Peoplev.Anthony ParkerCourt of Appeals of New YorkSeptember 30, 2013 OPINION TEXT STARTS HERE 2d Dept.: 107 A.D.3d 1017, 967 N.Y.S.2d 763 (Kings)Graffeo, J. ...