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People v. Gutierrez

Supreme Court of New York, Second Department

August 7, 2013

The People of the State of New York, respondent,
v.
Jesus Gutierrez, appellant. Ind. No. 11464/96

Lynn W. L. Fahey, New York, N.Y. (Jessica M. McNamara of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Michael L. Brenner of counsel), for respondent.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, SANDRA L. SGROI, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Ozzi, J.), dated May 2, 2012, which denied his motion for resentencing pursuant to CPL 440.46 on his conviction of criminal sale of a controlled substance in the third degree, which sentence was originally imposed, upon his plea of guilty, on May 29, 1997.

ORDERED that the order is affirmed.

The Supreme Court providently exercised its discretion in denying the defendant's motion for resentencing pursuant to CPL 440.46. The defendant committed the instant offense while on parole for a previous offense, was convicted of two felonies and incurred 26 disciplinary violations, including 12 Tier III infractions, while incarcerated, and violated parole on four separate occasions after being released on parole during his current sentence. The defendant was convicted of three new crimes arising out of conduct that occurred while he was released on parole during his current sentence. Under the circumstances, notwithstanding the defendant's positive achievements while incarcerated, substantial justice dictated that his motion be denied (see People v Cabrera, 103 A.D.3d 748, 748-749; People v Darwin, 102 A.D.3d 807, 808; People v Franklin, 101 A.D.3d 1148, 1148-1149).

BALKIN, J.P., HALL, LOTT and SGROI, JJ., concur.


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