Summary
In People v. Ford, 103 AD3d 492 (1st Dept 2013), the First Department stated “[w]e have consistently held that in determining whether substantial justice dictates the denial of a resentencing application, it is proper to consider the totality of the circumstances, including the nature and seriousness of the offense for which the defendant was sentenced, the defendant's conduct post-sentence and his or her criminal and institutional record.
Summary of this case from People v. De Los DiosOpinion
2013-02-19
The PEOPLE of the State of New York, Respondent, v. Christopher FORD, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Steven Berko of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Steven Berko of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, RENWICK, RICHTER, ROMÁN, JJ.
Order, Supreme Court, New York County (Laura A. Ward, J.), entered on or about January 6, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.
The court concluded that substantial justice dictated the denial of the motion ( see generally People v. Gonzalez, 29 A.D.3d 400, 815 N.Y.S.2d 75 [1st Dept. 2006], lv. denied7 N.Y.3d 867, 824 N.Y.S.2d 612, 857 N.E.2d 1143 [2006] ). We have consistently held that, in determining whether substantial justice dictates the denial of a resentencing application, it is proper to consider the totality of the circumstances, including the nature and seriousness of the offense for which the defendant was sentenced ( see e.g. People v. Rodriguez, 54 A.D.3d 600, 864 N.Y.S.2d 406 [1st Dept. 2008] ), the defendant's conduct post-sentence ( see People v. Batista, 45 A.D.3d 396, 845 N.Y.S.2d 785 [1st Dept. 2007] ), and his or her criminal and institutional record ( see People v. Anonymous, 98 A.D.3d 913, 950 N.Y.S.2d 906 [1st Dept. 2012], lv. denied20 N.Y.3d 985, 958 N.Y.S.2d 700, 982 N.E.2d 620 [2012] ).
Defendant had amassed an extensive criminal record in both New York and New Jersey dating back to 1987. While it is true that many of his convictions involved relatively minor misdemeanor property and drug possession crimes, a number of them were the result of pleas to misdemeanors in satisfaction of felony charges. Moreover, defendant's criminal history reveals his use of various aliases and dates of birth, as well as a number of convictions for the sale of drugs, and not mere possession. His history of recidivism, particularly his three parole violations for the commission of crimes while on parole, were all appropriate factors for the court to consider. Although defendant attempts to minimize the sale of cocaine to an undercover police officer in the instant case, the record reveals that he had on his person a greater amount of drugs than he sold to the officer. It is clear from these facts, as well as defendant's prior convictions for felony drug sales, that this sale was not an isolated incident.
The court also considered the evidence of defendant's rehabilitation while in prison ( see People v. Davis, 51 A.D.3d 573, 858 N.Y.S.2d 164 [1st Dept. 2008] ). Defendant completed treatment programs for both his drug addition and his mental issues. His prison record was exemplary. Nevertheless, it was within the court's discretion to conclude that defendant's record while incarcerated did not outweigh the seriousness of his offense and his extensive history of recidivism and absconding ( see People v. Spann, 88 A.D.3d 597, 598, 931 N.Y.S.2d 498 [1st Dept. 2011], lv. denied18 N.Y.3d 886, 939 N.Y.S.2d 756, 963 N.E.2d 133 [2012];People v. McRae, 88 A.D.3d 552, 931 N.Y.S.2d 228 [1st Dept. 2011], lv. denied18 N.Y.3d 884, 939 N.Y.S.2d 754, 963 N.E.2d 131 [2012] ). Nor do defendant's age and mental condition warrant a different result.