People v Bethea, 2016 NY Slip Op 08244 [145 AD3d 738]

December 7, 2016

Appellate Division, Second Department

[*1]

The People of the State of New York, Respondent,

v

Michael Bethea, Appellant.

Lynn W.L. Fahey, New York, NY (Samuel Brown of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Thomas M. Ross, and Kendra Challenger-Nibbs of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Dowling, J.), dated September 24, 2014, which, after a hearing, denied his motion to be resentenced pursuant to CPL 440.46 on his conviction of criminal possession of a controlled substance in the third degree, which sentence was originally imposed, upon a jury verdict, on October 5, 2004.

Ordered that the order is affirmed.

A defendant who is eligible for resentencing pursuant to CPL 440.46 enjoys a statutory presumption in favor of resentencing ( see People v Duke , 132 AD3d 893 [2015]; People v Brown , 115 AD3d 155 , 156-157 [2014] affd 25 NY3d 247 [2015]; People v Beasley , 47 AD3d 639 , 641 [2008]). However, resentencing is not automatic, and the determination is left to the discretion of the Supreme Court ( see People v Duke , 132 AD3d 893 [2015]; People v Karim , 85 AD3d 943 , 944 [2011]; People v Beasley , 47 AD3d at 641).

Here, in light of the defendant’s extensive and continuous criminal history, which includes a conviction of manslaughter in the first degree, his lackluster institutional disciplinary record, and his arrest for criminal possession of a weapon while on parole, the Supreme Court providently exercised its discretion in denying his motion for resentencing pursuant to CPL 440.46 ( see People v Duke , 132 AD3d 893 [2015]; People v Peterson , 88 AD3d 1026 , 1027 [2011]; People v Overton , 86 AD3d 4 , 16 [2011]; People v Karim , 85 AD3d at 944). Dillon, J.P., Dickerson, Hinds-Radix and Maltese, JJ., concur..