                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 19, 2016                      107095
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JAMES LEE,
                    Appellant.
________________________________


Calendar Date:   April 18, 2016

Before:   Lahtinen, J.P., McCarthy, Garry, Rose and Aarons, JJ.

                             __________


      Torrance L. Schmitz, Vestal, for appellant, and appellant
pro se.

      Weeden A. Wetmore, District Attorney, Elmira (Sophie J.
Marmor of counsel), for respondent.

                             __________


Lahtinen, J.P.

      Appeal from an order of the County Court of Chemung County
(Hayden, J.), entered August 28, 2014, which denied defendant's
motion for resentencing pursuant to CPL 440.46.

      In 2001, defendant was convicted of three counts of
criminal sale of a controlled substance in the third degree, one
count of criminal possession of a controlled substance in the
third degree and one count of criminal possession of a controlled
substance in the fourth degree. He was sentenced as a second
felony offender to four prison terms of 12½ to 25 years on the
criminal sale and third-degree criminal possession convictions
and a prison term of 7½ to 15 years on the fourth-degree criminal
possession conviction, all sentences to run concurrently. His
                              -2-                107095

conviction was later affirmed on appeal (People v Lee, 303 AD2d
839 [2003], lv denied 100 NY2d 622 [2003]).

      In 2009, defendant made a pro se motion pursuant to CPL
440.46 to be resentenced on these crimes. County Court denied
the motion on the ground that a prior violent felony conviction
rendered him ineligible for resentencing. This Court reversed
and remitted the matter to County Court to reconsider defendant's
motion in light of the relevant factors (People v Lee, 110 AD3d
1346 [2013]). On remittal, County Court again denied defendant's
motion, finding that he was not entitled to resentencing on the
fourth-degree criminal possession conviction, a class C felony,
because the provisions of CPL 440.46 applied only to class B
felonies. Nevertheless, the court proceeded to review
defendant's criminal history, the circumstances underlying his
conviction, his prison disciplinary record and his
accomplishments while in prison, and concluded that substantial
justice would not be served by resentencing him. Defendant now
appeals.

      Initially, the People concede, and we agree, that County
Court erred in finding that defendant was ineligible to be
resentenced on the crime of criminal possession of a controlled
substance in the fourth degree because it is a class C felony.
The statute clearly provides for resentencing on a class C felony
where, as here, the original sentence was imposed at the same
time as the sentences on the class B felonies (see CPL 440.46
[2]). Accordingly, defendant was eligible to be resentenced on
this crime.

      Notwithstanding this error, County Court proceeded to
consider the merits of defendant's motion. Under CPL 440.46, an
eligible defendant shall be resentenced "unless 'substantial
justice dictates that the application should be denied'" (People
v Davis, 128 AD3d 1269, 1269 [2015], quoting L 2004, ch 738 § 23;
see People v Carpenter, 86 AD3d 721, 721 [2011]). Here, County
Court considered defendant's lengthy criminal history, including
a conviction for escape in the first degree arising from his
escape from jail in 2001, his prison disciplinary record and his
failure to take responsibility for his crimes. The court also
took into account defendant's accomplishments while in prison,
                              -3-                  107095

but concluded that substantial justice would not be served by
resentencing in light of the other factors. Under the
circumstances presented, we find that County Court did not abuse
its discretion in denying defendant's motion (see People v Davis,
128 AD3d at 1270; People v Allen, 118 AD3d 1048, 1049 [2014], lv
denied 24 NY3d 958 [2014]; People v Buckery, 98 AD3d 1191 [2012],
lv denied 20 NY3d 1009 [2013]). We have considered the
contentions raised in defendant's pro se brief and find them to
be unavailing.

     McCarthy, Garry, Rose and Aarons, JJ., concur.



     ORDERED that the order is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
