People v Matthews, 2011 NY Slip Op 07370 [88 AD3d 575]

October 20, 2011

Appellate Division, First Department

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Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot 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 (Ronald Zweibel, J.), entered on or about January 21, 2010, which denied defendant’s CPL 440.46 motion for resentencing, unanimously affirmed.

Defendant is eligible to be considered for resentencing even though he was reincarcerated for a parole violation ( People v Paulin , 17 NY3d 238 [2011]). However, the record supports the court’s alternative holding in which it denied the motion on its merits. 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]), given defendant’s extremely poor prison disciplinary record and his extensive criminal history. Concur—Tom, J.P., Andrias, Catterson, Acosta and Renwick, JJ. [Prior Case History: 26 Misc 3d 1217(A), 2010 NY Slip Op 50118(U).].