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The People of the State of v. Dwayne Buckery

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


September 27, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DWAYNE BUCKERY, APPELLANT.

Appeal from an order of the County Court of Warren County (Hall, Jr., J.), entered June 6, 2011, which denied defendant's motion for resentencing pursuant to CPL 440.46.

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

MEMORANDUM AND ORDER

Calendar Date: September 4, 2012

Before: Peters, P.J., Rose, Spain, McCarthy and Egan Jr., JJ.

Following defendant's 2004 conviction of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree, he was sentenced as a persistent felony offender to 20 years to life in prison, and his conviction was later upheld on appeal (People v Buckery, 20 AD3d 821 [2005], lv denied 5 NY3d 826 [2005]). Defendant's 2009 motion for resentencing pursuant to the Drug Law Reform Act of 2009 (see CPL 440.46) was denied by County Court after a hearing, prompting this appeal.

We affirm. After noting that defendant, who was arrested during a police raid on a residence known for drug activity, has never taken responsibility for the crimes at issue here, County Court appropriately balanced his moderately successful institutional history against his 35 arrests, five felony convictions -- two of them for violent felonies, and two separate parole violations - and concluded that substantial justice dictates denial of the motion for resentencing (see CPL 440.46 [3]). Upon our review of the record, we find no basis to disturb the court's exercise of its discretion (see People v Peterson, 88 AD3d 1026, 1027 [2011]; People v Carpenter, 86 AD3d 721, 721-722 [2011]; People v La Porte, 53 AD3d 984, 985 [2008]).

Peters, P.J., Rose, McCarthy and Egan Jr., JJ., concur.

ORDERED that the order is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120927

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