           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1310
KA 13-00123
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

LAMAR O. BROWN, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID R. PANEPINTO
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Penny M.
Wolfgang, J.), entered December 19, 2012 pursuant to the 2005 Drug Law
Reform Act. The order denied the application of defendant for
resentencing upon his conviction of criminal possession of a
controlled substance in the second degree.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from an order denying his
application for resentencing upon his 2004 conviction of criminal
possession of a controlled substance in the second degree (Penal Law §
220.18 [former (1)]) pursuant to the 2005 Drug Law Reform Act (L 2005,
ch 643, § 1). We conclude that Supreme Court properly denied the
application for resentencing because defendant, at the time of his
application, was eligible for parole and thus was ineligible for
resentencing (see People v Mills, 11 NY3d 527, 534; People v Smith, 45
AD3d 1478, 1479). In any event, we further conclude that the court
providently exercised its discretion in determining that substantial
justice would have dictated denial of the application had defendant
been eligible for resentencing (see People v Dominguez, 88 AD3d 901,
901, lv denied 18 NY3d 882; People v Savinan, 59 AD3d 247, 247, lv
dismissed 12 NY3d 787; People v Flores, 50 AD3d 1156, 1156, lv
dismissed 10 NY3d 934).




Entered:    January 2, 2015                        Frances E. Cafarell
                                                   Clerk of the Court
