Opinion
2012-02-28
The PEOPLE of the State of New York, Respondent, v. David LATTIMORE, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (David Crow of counsel), and Cleary Gottlieb Steen & Hamilton LLP, New York (Megan M. St. Ledger of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Caleb Kruckenberg of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (David Crow of counsel), and Cleary Gottlieb Steen & Hamilton LLP, New York (Megan M. St. Ledger of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Caleb Kruckenberg of counsel), for respondent.
MAZZARELLI, J.P., ANDRIAS, CATTERSON, ABDUS–SALAAM, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Ronald A. Zweibel, J.), entered on or about May 21, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously reversed, as a matter of discretion in the interest of justice, the motion granted, the order replaced by an order specifying and informing defendant of a proposed sentence of two years plus 1 1/2 years' postrelease supervision, and the matter remanded for further proceedings.
Substantial justice does not dictate denial of resentencing, and we exercise our discretion to specify an appropriate resentence ( see e.g. People v. Milton, 86 A.D.3d 478, 926 N.Y.S.2d 898 [2011] ). Under the circumstances presented, the mitigating factors cited by defendant were not outweighed by the extent of his criminal history.
In 2006, defendant received a prison sentence for the underlying 2001 offense after he failed to complete the drug treatment alternative program to which he was originally diverted. However, defendant stayed in treatment for two and one-half years, successfully completing the residential phase of the treatment program, and his single relapse was satisfactorily explained.
During defendant's imprisonment on the underlying offense he had an exemplary record, he finally completed substance abuse treatment as well as several work programs, he counseled other inmates, and he received positive letters of recommendations from corrections officials. Although defendant has a long criminal history, his last violent felonies occurred over 40 years ago and he has no record of drug trafficking other than at the lowest level.