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The People of the State of New York v. Gerald L. Carpenter

State of New York Supreme Court, Appellate Division Third Judicial Department


July 14, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
GERALD L. CARPENTER, APPELLANT.

Appeal from an order of the County Court of Columbia County (Nichols, J.), entered May 13, 2010, which denied defendant's motion for resentencing pursuant to CPL 440.46.

The opinion of the court was delivered by: Garry, J.

MEMORANDUM AND ORDER

Calendar Date: May 31, 2011

Before: Mercure, J.P., Spain, Kavanagh, Garry and Egan Jr., JJ.

Defendant was convicted in 2005 of criminal possession of a controlled substance in the third degree and was sentenced to 10 to 20 years in prison. His conviction and sentence were affirmed by this Court on appeal (51 AD3d 1149 [2008], lv denied 11 NY3d 786 [2008]). Defendant subsequently moved to be resentenced pursuant to CPL 440.46. Following a hearing, County Court denied the motion and defendant now appeals.

We affirm. Upon determining that a defendant is eligible for resentencing pursuant to CPL 440.46, a court shall determine the appropriate determinate sentence "unless substantial justice dictates that the application should be denied" (L 2004, ch 738, § 23; see CPL 440.46 [3]). To the extent that any weight was afforded to this Court's previous denial of defendant's claim that his sentence was harsh and excessive (51 AD3d at 1151), this was error. However, the court placed the reasons for its determination on the record and appropriately considered the relevant factors, including defendant's criminal and disciplinary history, the circumstances underlying his conviction and original sentence, and his accomplishments while incarcerated. Accordingly, we find no basis to disturb the denial of defendant's motion for resentencing (see People v La Porte, 53 AD3d 984, 985 [2008]; People v Rivers, 43 AD3d 1247, 1247-1248 [2007], lv dismissed 9 NY3d 993 [2007]).

Mercure, J.P., Spain, Kavanagh and Egan Jr., JJ., concur.

ORDERED that the order is affirmed.

Robert D. Mayberger Clerk of the Court

ENTER:

20110714

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