Opinion
2012-01-24
The PEOPLE of the State of New York, Respondent, v. Erick VILLALONA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Marc Adam Sherman of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Marc Adam Sherman of counsel), for respondent.
Order, Supreme Court, Bronx County (Harold Adler, J.), entered May 14, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.
Regardless of whether defendant was eligible for resentencing, the record supports the court's alternative finding that substantial justice dictated denial of the application. That determination was a proper exercise of the court's discretion ( see People v. Gonzalez, 29 A.D.3d 400, 815 N.Y.S.2d 75 [2006], lv. denied 7 N.Y.3d 867, 824 N.Y.S.2d 612, 857 N.E.2d 1143 [2006] ). Shortly after being released from prison on a homicide conviction, defendant possessed a significant quantity of drugs under circumstances indicating that he was involved in large-scale drug trafficking. These factors outweighed defendant's favorable record while incarcerated on the drug case ( see e. g. People v. Gumbs, 66 A.D.3d 558, 886 N.Y.S.2d 596 [2009], lv. dismissed 14 N.Y.3d 771, 898 N.Y.S.2d 103, 925 N.E.2d 108 [2010] ).