People v Hurst, 2011 NY Slip Op 02940 [83 AD3d 499]

April 14, 2011

Appellate Division, First Department

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Robert S. Dean, Center for Appellate Litigation, New York (Peter Theis of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Naomi C. Reed of counsel), for respondent.

Order, Supreme Court, New York County (Richard D. Carruthers, J.), entered on or about February 3, 2010, which denied defendant’s CPL 440.46 motion for resentencing, unanimously affirmed.

The court properly exercised its discretion in determining that substantial justice dictated denial of the motion ( see generally People v Gonzalez , 29 AD3d 400 [2006], lv denied 7 NY3d 867 [2006]). The court properly considered the totality of the circumstances, including defendant’s history of recidivism and his failure to profit from rehabilitation opportunities while not in custody. These factors outweighed the positive factors cited by defendant, including his prison record. Concur—Mazzarelli, J.P., Friedman, Acosta, DeGrasse and RomÁn, JJ..