Opinion
Nos. 4688, 4689.
April 5, 2011.
Order, Supreme Court, New York County (Patricia M. Nunez, J.), entered May 13, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi-Levi of counsel), for respondent.
Before: Mazzarelli, J.P., Sweeny, Renwick, Richter and Manzanet-Daniels, JJ.
The court considered the appropriate factors and properly exercised its discretion in concluding that substantial justice dictated a denial of resentencing. The underlying drug crime involved a large quantity of cocaine. Defendant was indicted for first-degree criminal possession of a controlled substance, but was permitted to plead guilty to third-degree possession and released on bail pending sentencing. Defendant absconded, remained outside this jurisdiction for many years, and was convicted of a new drug felony, all of which was in violation of his plea agreement. In addition, defendant had absconded while awaiting sentencing on his conviction in Bronx County of criminal possession of a weapon in the third degree. Under the circumstances, evidence of defendant's rehabilitation while incarcerated was outweighed by the factors militating against resentencing ( see People v Marte, 44 AD3d 442, lv dismissed 9 NY3d 991; see also People v Aguirre, 47 AD3d 489, lv dismissed 10 NY3d 761).