June 6, 2013
The People of the State of New York, Respondent,
Omar Rivera, Defendant-Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Samantha L. Stern of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Rafael Curbelo of counsel), for respondent.
Gonzalez, P.J., Sweeny, Richter, Clark, JJ.
Order, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered November 18, 2011, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.
The court properly exercised its discretion in determining that substantial justice dictated the denial of resentencing. In making this determination, the court made "an individualized assessment of all the relevant facts and circumstances, including, among other things,  defendant's recidivism [and] misconduct while incarcerated" (People v Marti, 81 A.D.3d 418, 418 [1st Dept 2001], lv denied 17 N.Y.3d 798 ).