People v. Plato

• Decision Date: 14 November 2018
• Docket Number: 2016–10021,Ind. No. 8115/00
• Citation: 85 N.Y.S.3d 771 (Mem),166 A.D.3d 814
• Parties: The PEOPLE, etc., Respondent, v. Kenneth PLATO, Appellant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 814

85 N.Y.S.3d 771 (Mem)

The PEOPLE, etc., Respondent,

v.Kenneth PLATO, Appellant.

2016–10021

Ind. No. 8115/00

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

Argued—September 14, 2018

November 14, 2018

Paul Skip Laisure, New York, NY (Tammy E. Linn of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jill Oziemblewski of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated August 16, 2016, which, after a hearing, denied his motion to be resentenced pursuant to CPL 440.46 on his conviction of criminal possession of a controlled substance in the third degree.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant, who was convicted, inter alia, of criminal possession of a controlled substance in the third degree, moved for resentencing on that conviction pursuant to CPL 440.46. The Supreme Court denied the motion, concluding that substantial justice dictated the denial of the motion.

A defendant who is eligible for resentencing pursuant to CPL 440.46 enjoys "a presumption in favor of granting a motion for resentencing relief" ( 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 may be denied upon a showing that "substantial justice dictates" such denial ( People v. Beasley , 47 A.D.3d at 641, 850 N.Y.S.2d 140 ; see CPL 440.46[3] ; L 2004, ch 738, § 23; People v. Leon , 129 A.D.3d 867, 9 N.Y.S.3d 885 ).

Here, considering all of the circumstances relevant to the defendant's motion, including his prior convictions of two violent felonies; his possession, at the time he committed the instant drug offense, of several weapons, leading to violent felony convictions, as well as numerous boxes of ammunition, a bulletproof vest, and a stolen police radio; and his commission of 18 prison disciplinary infractions, the Supreme Court providently exercised its discretion in determining that substantial justice dictated the denial of his motion for resentencing pursuant to CPL 440.46 (see People v. Brown , 110 A.D.3d 915, 915–916, 972 N.Y.S.2d 716 ; People v. Browne , 107 A.D.3d 1013, 966 N.Y.S.2d 873 ; People v. Cabrera , 103 A.D.3d 748, 748–749, 959 N.Y.S.2d 534 ; People v. Franklin , 101 A.D.3d 1148, 1148–1149,...