People v. Rios , 1 N.Y.S.3d 801 ( 2015 )

People v Rios (2015 NY Slip Op 01529)

People v Rios

2015 NY Slip Op 01529

Decided on February 19, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 19, 2015
Tom, J.P., Saxe, Manzanet-Daniels, Gische, Clark, JJ.

14267 8162/02

[*1] The People of the State of New York, Respondent,

v

Angel Rios, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Leticia M. Olivera of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.

Order, Supreme Court, New York County (Renee A. White, J.), entered on or about April 22, 2013, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.

The court properly determined that substantial justice dictated the denial of defendant's resentencing application. Resentencing is a discretionary determination (see 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]). The mitigating factors cited by defendant were outweighed by his extensive criminal history and generally poor prison disciplinary record. In particular, defendant's inability to control his behavior is demonstrated by his robbery and other convictions while on parole from the drug conviction at issue (see e.g. People v Arroyo, 99 AD3d 515, 517 [1st Dept 2012], lv denied 20 NY3d 1059 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 19, 2015

CLERK