Opinion
2012-04-10
The PEOPLE, etc., respondent, v. Kelly GREEN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for appellant. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for appellant. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated December 15, 2010, 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 a jury verdict, on June 1, 1989.
ORDERED that the order is affirmed.
Notwithstanding the defendant's positive achievements while incarcerated, the Supreme Court providently exercised its discretion in denying the defendant's motion for resentencing pursuant to CPL 440.46. The defendant had prior convictions for robbery in the second degree and assault in the second degree, and a prior juvenile delinquency adjudication for an act which, if committed by an adult, would have constituted the crime of murder in the second degree. In addition, the defendant received disciplinary tickets for 38 Tier II and 7 Tier III infractions during his incarceration, including multiple tickets for fighting, harassment, making threats, violent conduct, and lewd conduct. Under the circumstances, substantial justice dictated that the motion be denied ( see People v. Myles, 90 A.D.3d 952, 953–954, 935 N.Y.S.2d 99; People v. Miller, 88 A.D.3d 1015, 1016, 931 N.Y.S.2d 391, lv. denied 18 N.Y.3d 860, 938 N.Y.S.2d 868, 962 N.E.2d 293; People v. Karim, 85 A.D.3d 943, 944, 925 N.Y.S.2d 835).