Opinion
2013-10-4
The PEOPLE of the State of New York, Respondent, v. Elbert J. WELCH, Defendant–Appellant.
Appeal from an order of the Niagara County Court (Robert C. Noonan, A.J.), dated July 12, 2011. The order denied the application of defendant to be resentenced pursuant to CPL 440.46. Robert M. Pusateri, Conflict Defender, Lockport (Edward P. Perlman of Counsel), for Defendant–Appellant. Elbert J. Welch, Defendant–Appellant Pro Se.
Appeal from an order of the Niagara County Court (Robert C. Noonan, A.J.), dated July 12, 2011. The order denied the application of defendant to be resentenced pursuant to CPL 440.46.
Robert M. Pusateri, Conflict Defender, Lockport (Edward P. Perlman of Counsel), for Defendant–Appellant. Elbert J. Welch, Defendant–Appellant Pro Se.
Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from an order denying his application for resentencing pursuant to CPL 440.46. Contrary to defendant's contentions in his main and pro se supplemental briefs, we conclude that County Court properly considered the relevant facts and circumstances in determining that “[t]he evidence of the defendant's rehabilitation does not outweigh his criminal history, institutional record, and pattern*926of successive reoffenses while on parole” ( People v. Cabrera, 103 A.D.3d 748, 748–749, 959 N.Y.S.2d 534). Thus, the court did not abuse its discretion in determining that “substantial justice dictate[d] that the application should be denied” (L. 2004, ch. 738, § 23; see e.g. People v. Milland, 103 A.D.3d 669, 670, 958 N.Y.S.2d 507,lv. denied21 N.Y.3d 1017, 971 N.Y.S.2d 500, 994 N.E.2d 396;People v. Benitez–Fernandez, 96 A.D.3d 1665, 1666, 946 N.Y.S.2d 820). We have considered defendant's remaining contentions in his pro se supplemental brief and conclude that none warrants reversal or modification of the order.
It is hereby ORDERED that the order so appealed from is unanimously affirmed.