GATEWOOD, MICHAEL J., PEOPLE v ( 2011 )


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  •            SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    766
    KA 10-01826
    PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    MICHAEL J. GATEWOOD, DEFENDANT-APPELLANT.
    ADAM H. VAN BUSKIRK, AURORA, FOR DEFENDANT-APPELLANT.
    JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (ROMOLO CANZANO OF
    COUNSEL), FOR RESPONDENT.
    Appeal from an order of the Cayuga County Court (Thomas G. Leone,
    J.), entered May 6, 2010 pursuant to the 2009 Drug Law Reform Act.
    The order denied defendant’s application to be resentenced upon
    defendant’s 1998 conviction of criminal sale of a controlled substance
    in the third degree.
    It is hereby ORDERED that the order so appealed from is
    unanimously affirmed.
    Memorandum: Defendant appeals from an order denying his
    application for resentencing pursuant to CPL 440.46, the 2009 Drug Law
    Reform Act (DLRA-3). Although defendant is eligible to apply for
    resentencing under DLRA-3 despite the fact that he had been released
    from incarceration and was thereafter reincarcerated for violating the
    conditions of his parole (see People v Paulin, ___ NY3d ___ [June 28,
    2011]; People v Wallace, ___ AD3d ___ [Aug. 19, 2011]), we
    nevertheless conclude that County Court did not abuse its discretion
    in determining that substantial justice required denial of his
    application (see People v Pipkin, 77 AD3d 770, lv denied 15 NY3d 955).
    We reject defendant’s further contention that the court erred in
    receiving the limited testimony of the District Attorney regarding his
    personal knowledge of defendant’s criminal history (see generally CPL
    440.46 [3]; L 2004, ch 738, § 23).
    Entered:    August 19, 2011                        Patricia L. Morgan
    Clerk of the Court
    

Document Info

Docket Number: KA 10-01826

Filed Date: 8/19/2011

Precedential Status: Precedential

Modified Date: 10/8/2016