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The People of the State of v. Lashawn D. Graham

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


July 5, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
LASHAWN D. GRAHAM, APPELLANT.

Appeal from an order of the County Court of Chemung County (Hayden, J.), entered June 8, 2010, which denied defendant's motion for resentencing pursuant to CPL 440.46.

MEMORANDUM AND ORDER

Calendar Date: May 9, 2012

Before: Peters, P.J., Mercure, Malone Jr., Kavanagh and Stein, JJ.

In 2000, defendant was convicted of criminal sale of a controlled substance in the third degree and was sentenced to 6 to 12 years in prison. In 2009, he moved for resentencing pursuant to CPL 440.46 and waived his right to a hearing. County Court denied the motion and this appeal ensued.

We affirm. The record discloses that defendant has a lengthy criminal history, consisting of many drug-related convictions, as well as prior parole violations and prison disciplinary infractions. Under these circumstances, and notwithstanding defendant's programming achievements while incarcerated, we conclude that County Court properly exercised its discretion in finding that substantial justice would not be served by resentencing defendant (see CPL 440.46 [3]; see e.g. People v Gonzalez, 92 AD3d 798, 799 [2012]; People v Rivera, 92 AD3d 523, 524 [2012]; People v Carpenter, 86 AD3d 721, 721 [2011]).

Peters, P.J., Mercure, Malone Jr., Kavanagh and Stein, JJ., concur.

ORDERED that the order is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120705

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