October 3, 2013
The People of the State of New York, Respondent,
George Colon, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), and White & Case LLP, New York (Jayashree Mitra of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Joshua L. Haber of counsel), for respondent.
Mazzarelli, J.P., Renwick, DeGrasse, Freedman, Feinman, JJ.
Order, Supreme Court, New York County (Renee A. White, J.), entered on or about November 22, 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 denial of the motion (see e.g. People v Gonzalez, 29 A.D.3d 400 , lv denied 7 N.Y.3d 867 ). Resentencing is not automatic, and courts may deny the applications of persons who "have shown by their conduct that they do not deserve relief from their sentences" (People v Paulin, 17 N.Y.3d 238, 244 ). Defendant has demonstrated a "chronic inability to control his behavior while at liberty" (People v Correa, 83 A.D.3d 555, 556 [1st Dept 2011], lv denied 17 N.Y.3d 805 ), committing numerous crimes while on parole and even while his resentencing application was pending. Under the circumstances, evidence of defendant's rehabilitation while incarcerated and other positive factors was outweighed by the factors militating against resentencing.