People v. Smith , 988 N.Y.S.2d 186 ( 2014 )

Order, Supreme Court, New York County (Daniel E FitzGerald, J.), entered on or all out April 27, 2012, which denied defendant’s CPL 440.46 motion for resentencing, unanimously affirmed. Appeal from order, same court and Justice, entered on or about July 16, 2010, unanimously dismissed as academic.

The court properly exercised its discretion in determining that substantial justice dictated the denial of defendant’s motion for resentencing. Resentencing is discretionary (People v Sosa, 18 NY3d 436, 442-443 [2012]), and courts may deny the applications of persons who “have shown by their conduct that they do not deserve relief from their sentences” (People v Paulin, 17 NY3d 238, 244 [2011]). Accordingly, the court properly considered defendant’s entire background, and not merely the circumstances of the underlying drug conviction. Before that conviction, defendant already had five felony convictions, which included crimes of violence. Defendant’s prison disciplinary record was extremely poor. Furthermore, he committed numerous crimes while on parole, and even while his resentencing motion was pending (see e.g. People v Neely, 99 AD3d 578 [1st Dept 2012], lv denied 20 NY3d 1013 [2013]). Thus, defendant has “demonstrated a complete inability to control his behavior” (People v Arce, 83 AD3d 590, 591 [1st Dept 2011]).

Concur— Mazzarelli, J.E, Acosta, Freedman, Richter and Clark, JJ.