SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
843
KA 12-01907
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JOHNNIE COLOME-RODRIGUEZ, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MISHA A. COULSON
OF COUNSEL), FOR RESPONDENT.
Appeal from an order of the Onondaga County Court (William D.
Walsh, J.), entered February 28, 2011. The order denied the motion of
defendant for resentencing pursuant to CPL 440.46.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed.
Memorandum: On appeal from an order denying his motion for
resentencing pursuant to the 2009 Drug Law Reform Act (CPL 440.46),
defendant contends that County Court failed to apprehend that it had
discretion to resentence him. That contention is belied by the
record, which establishes that the People conceded that defendant was
eligible for resentencing but the court concluded that “substantial
justice” required denial of defendant’s motion.
Contrary to defendant’s further contention, “[t]he court properly
exercised its discretion in determining that substantial justice
dictated that defendant’s resentencing application should be denied”
(People v Perez, 110 AD3d 528, 528, lv denied 22 NY3d 1043; see People
v Sosa, 18 NY3d 436, 443). In denying the application, the court
considered the facts that defendant absconded prior to trial in this
case and was sentenced in absentia, that he remained at large for 17
years, and that he possessed a large quantity of drugs that was
inconsistent with street-level sales (see Perez, 110 AD3d at 528).
Defendant did not contest the information in the presentence report
that he had been arrested on new drug charges in New York City while
he was at large, nor did he object to the court’s statement that he
possessed a handgun at the time of the initial arrest on this matter.
Thus, inasmuch “[a]s defendant failed to object at the time of
sentencing, the claim that the court considered improper factors in
imposing the sentence is unpreserved for [our] review” (People v
Rosado, 300 AD2d 838, 840-841, lv denied 99 NY2d 619; see People v
-2- 843
KA 12-01907
Harrison, 82 NY2d 693, 694; People v Mathieu, 83 AD3d 735, 737, lv
denied 17 NY3d 798), and we decline to exercise our power to review
that claim as a matter of discretion in the interest of justice. The
information that defendant submitted on appeal regarding that claim is
de hors the record.
Entered: September 26, 2014 Frances E. Cafarell
Clerk of the Court