New York Supreme and/or Appellate Courts Appellate Division, First Department
February 14, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
EDUARDO RIVERA, DEFENDANT-APPELLANT.
People v Rivera
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on February 14, 2012 Tom, J.P., Andrias, Catterson, Richter, Abdus-Salaam, JJ.
Order, Supreme Court, Bronx County (Seth L. Marvin, J.), entered on or about May 4, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.
The court properly exercised its discretion in determining that substantial justice dictated denial of the motion (see e.g. People v Gonzalez, 29 AD3d 400 , lv denied 7 NY3d 867 ). Defendant had an extensive criminal history and a poor prison disciplinary record, and these factors outweighed any mitigating factors. In particular, defendant had an opportunity to have the underlying drug conviction reduced to a misdemeanor by completing a drug treatment program; instead, he absconded from the program and committed a robbery.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 14, 2012
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