People v Arce, 2011 NY Slip Op 03295 [83 AD3d 590]

April 26, 2011

Appellate Division, First Department

— [*1]

Steven Banks, The Legal Aid Society, New York (David Crow of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Emily Anne Aldridge of counsel), for respondent.

Order, Supreme Court, Bronx County (John P. Collins, J.), entered on or about April 12, 2010, which denied defendant’s CPL 440.46 motion for resentencing, unanimously affirmed.

The court appropriately exercised its discretion in determining that substantial justice required denial of defendant’s application ( see People v Gonzalez , 29 AD3d 400 [2006], lv denied 7 NY3d 867 [2006]). Defendant has demonstrated a complete inability to control his behavior. During his incarceration on the underlying conviction he committed 27 disciplinary infractions. In addition, he has repeatedly refused to enter or failed to complete drug treatment programs, and his lengthy criminal record includes numerous drug-related crimes committed while on parole or other forms of release. Concur—Tom, J.P., Andrias, Friedman, Abdus-Salaam and RomÁn, JJ..