Opinion
2011-11-15
The PEOPLE, etc., respondent,v.Allen BURNETT, appellant.
Lynn W.L. Fahey, New York, N.Y. (Ellen Fried of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Ayelet Sela of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Kron, J.), dated June 17, 2010, which denied his motion to be resentenced 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 his plea of guilty, on March 31, 2009.
ORDERED that the order is affirmed.
Even if the defendant were eligible for resentencing pursuant to the Drug Law Reform Act of 2009, codified in CPL 440.46, substantial justice dictated the denial of his motion to be resentenced. After the defendant pleaded guilty in 1997 to criminal sale of a controlled substance in the third degree, he failed to return for sentencing. The defendant only returned to court, involuntarily, after 11 years upon being arrested for burglary, and was convicted in late 2009 of burglary in the second degree, a violent felony ( see Penal Law § 70.02[1] [b]; § 140.25). Accordingly, under these circumstances, even though the defendant's conduct while incarcerated has been relatively positive, the Supreme Court properly denied the defendant's motion to be resentenced pursuant to CPL 440.46 ( see People v. Hickman, 85 A.D.3d 1057, 925 N.Y.S.2d 865; People v. Rodriguez, 83 A.D.3d 419, 920 N.Y.S.2d 83; People v. Ciriaco, 46 A.D.3d 374, 848 N.Y.S.2d 618; People v. Marte, 44 A.D.3d 442, 843 N.Y.S.2d 279).
RIVERA, J.P., ANGIOLILLO, BELEN and ROMAN, JJ., concur.