People v Spann, 2011 NY Slip Op 07499 [88 AD3d 597]

October 25, 2011

Appellate Division, First Department

— [*1]

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

Cyrus R. Vance, Jr., District Attorney, New York (Sean T. Masson of counsel), for respondent.

Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about February 5, 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]). Defendant’s history of recidivism and absconding outweighed the positive factors cited by defendant, including his prison record ( see e.g. People v Soler , 45 AD3d 499 [2007], lv dismissed 9 NY3d 1009 [2007]). Concur—Tom, J.P., Saxe, Moskowitz, DeGrasse and Abdus-Salaam, JJ..