SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1030
KA 12-01764
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
KEITH R. WILSON, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.
Appeal from an order of the Cattaraugus County Court (Larry M.
Himelein, J.), entered July 19, 2012 pursuant to the 2009 Drug Law
Reform Act. The order denied defendant’s application to be
resentenced upon his conviction of criminal possession of a controlled
substance in the third degree and criminal possession of a controlled
substance in the fifth 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 was released from
incarceration and has since been reincarcerated for allegedly
violating the conditions of his parole (see People v Paulin, 17 NY3d
238, 243-244; People v Wallace, 87 AD3d 824, 824), we nevertheless
conclude that County Court neither abused nor improvidently exercised
its discretion in determining that substantial justice required denial
of his application. It is undisputed that defendant completed
treatment for substance abuse and participated in many vocational
programs while incarcerated, but it was within the court’s discretion
to conclude that those accomplishments did not outweigh his lengthy
criminal history, unsatisfactory prison disciplinary record, and
history of absconding (see e.g. People v Manigault, 107 AD3d 492, 493;
People v Ford, 103 AD3d 492, 493; People v Spann, 88 AD3d 597, 598, lv
denied 18 NY3d 886; People v Hickman, 85 AD3d 1057, 1057-1058, lv
denied 18 NY3d 859).
Entered: November 8, 2013 Frances E. Cafarell
Clerk of the Court