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

1366
KA 09-02305
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BERNABE ENCARNACION, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.
AZZARELLI OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Onondaga County Court (William D.
Walsh, J.), entered April 9, 2009 pursuant to the 2004 Drug Law Reform
Act. The order denied defendant’s application to be resentenced upon
defendant’s 1991 conviction of, inter alia, two counts of criminal
sale of a controlled substance in the first 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 pursuant to the 2004 Drug Law Reform Act
([DLRA-1] L 2004, ch 738, § 23). Defendant failed to preserve for our
review his contention that County Court erred in failing to hold an
evidentiary hearing inasmuch as he did not request such a hearing (see
id.; People v Murray, 89 AD3d 567, 568, lv denied 18 NY3d 960; People
v Highsmith, 79 AD3d 1741, 1742, lv denied 16 NY3d 831). In any
event, that contention lacks merit. Defendant appeared with defense
counsel before the court on the resentencing application, and defense
counsel “ ‘explained to the court why resentencing was warranted’ ”
(People v Morales, 46 AD3d 1395, 1395, lv dismissed 10 NY3d 768). The
court also gave defendant the opportunity to address the court
directly on his application for resentencing. Under those
circumstances, “ ‘the hearing requirement of [DLRA-1] was met’ ” (id.;
cf. People v Irvin, 96 AD3d 1453, 1453).

     We reject the further contention of defendant that the court
erred in denying his resentencing application. DLRA-1 provides that,
in reviewing an application for resentencing, the court may consider
“any facts or circumstances relevant to the imposition of a new
sentence which are submitted by [the defendant] or the [P]eople and
may, in addition, consider the institutional record of confinement of
[the defendant]” (L 2004, ch 738, § 23). The court may also consider
                                 -2-                          1366
                                                         KA 09-02305

a defendant’s subsequent convictions (see People v Dominguez, 88 AD3d
901, 901, lv denied 18 NY3d 882; People v Vega, 40 AD3d 1020, 1020, lv
dismissed 9 NY3d 852; People v Gonzalez, 29 AD3d 400, 400, lv denied 7
NY3d 867). In short, “the court is vested with the discretion to deny
an application for resentencing if ‘substantial justice dictates that
the application should be denied’ ” (People v Rivers, 43 AD3d 1247,
1247, lv dismissed 9 NY3d 993, quoting L 2004, ch 738, § 23), and we
conclude that this is such a case.

     Only five years after his drug conviction, defendant stabbed a
fellow inmate to death, for which he was convicted of murder in the
second degree and promoting prison contraband in the first degree. On
that basis alone, we conclude that the court did not err in
determining that “substantial justice dictates that [defendant’s]
application should be denied” (L 2004, ch 738, § 23; see e.g. People v
Arroyo, 99 AD3d 515, 516; People v Alvarez, 94 AD3d 587, 587, lv
denied 19 NY3d 956; Rivers, 43 AD3d at 1248). Indeed, we note that
the purpose of the various DLRAs was to “grant relief from what the
Legislature perceived as the ‘inordinately harsh punishment for low
level non-violent drug offenders’ that the Rockefeller Drug Laws
required” (People v Paulin, 17 NY3d 238, 244 [emphasis added]) and,
based upon defendant’s conduct in prison, it is evident that he is not
such an offender.




Entered:   December 28, 2012                   Frances E. Cafarell
                                               Clerk of the Court
