People
v.
Bethea

Supreme Court, Appellate Division, Second Department, New York.Dec 7, 2016
41 N.Y.S.3d 899 (N.Y. App. Div. 2016)
41 N.Y.S.3d 899145 A.D.3d 7382016 N.Y. Slip Op. 8244

12-07-2016

The PEOPLE, etc., respondent, v. Michael BETHEA, appellant.

Lynn W.L. Fahey, New York, NY (Samuel Brown of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Thomas M. Ross, and Kendra Challenger–Nibbs of counsel), for respondent.


Lynn W.L. Fahey, New York, NY (Samuel Brown of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Thomas M. Ross, and Kendra Challenger–Nibbs of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Dowling, J.), dated September 24, 2014, which, after a hearing, denied his motion to be resentenced pursuant to CPL 440.46 on his conviction of criminal possession of a controlled substance in the third degree, which sentence was originally imposed, upon a jury verdict, on October 5, 2004.

ORDERED that the order is affirmed.

A defendant who is eligible for resentencing pursuant to CPL 440.46 enjoys a statutory presumption in favor of resentencing (see People v. Duke, 132 A.D.3d 893, 17 N.Y.S.3d 878 ; People v. Brown, 115 A.D.3d 155, 156–157, 979 N.Y.S.2d 367 affd. 25 N.Y.3d 247, 10 N.Y.S.3d 500, 32 N.E.3d 935 ; People v. Beasley, 47 A.D.3d 639, 641, 850 N.Y.S.2d 140 ). However, resentencing is not automatic, and the determination is left to the discretion of the Supreme Court (see People v. Duke, 132 A.D.3d 893, 17 N.Y.S.3d 878 ; People v. Karim, 85 A.D.3d 943, 944, 925 N.Y.S.2d 835 ; People v. Beasley, 47 A.D.3d at 641, 850 N.Y.S.2d 140 ).

Here, in light of the defendant's extensive and continuous criminal history, which includes a conviction of manslaughter in the first degree, his lackluster institutional disciplinary record, and his arrest for criminal possession of a weapon while on parole, the Supreme Court providently exercised its discretion in denying his motion for resentencing pursuant to CPL 440.46 (see People v. Duke, 132 A.D.3d 893, 17 N.Y.S.3d 878 ; People v. Peterson, 88 A.D.3d 1026, 1027, 930 N.Y.S.2d 497 ; People v. Overton, 86 A.D.3d 4, 16, 923 N.Y.S.2d 619 ; People v. Karim, 85 A.D.3d at 944, 925 N.Y.S.2d 835 ).

DILLON, J.P., DICKERSON, HINDS–RADIX and MALTESE, JJ., concur.