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

334
KA 15-01855
PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT SAFFOLD, DEFENDANT-APPELLANT.


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

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Onondaga County Court (Thomas J.
Miller, J.), entered August 8, 2013 pursuant to the 2009 Drug Law
Reform Act. The order denied the application of defendant to be
resentenced upon defendant’s 2003 conviction of criminal possession of
a controlled substance in the third degree and criminal possession of
a controlled substance in the fifth degree.

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

     Memorandum: On appeal from an order denying his application for
resentencing pursuant to the 2009 Drug Law Reform Act (see CPL
440.46), defendant contends that County Court erred in concluding that
certain factors overcame the statutory presumption in favor of
resentencing. We conclude that the court did not abuse its discretion
in denying defendant’s application.

     It is well settled that a “defendant who is eligible for
resentencing pursuant to CPL 440.46 enjoys a statutory presumption in
favor of resentencing . . . However, resentencing is not automatic,
and the determination is left to the discretion of the” sentencing
court (People v Bethea, 145 AD3d 738, 738; see People v Arroyo, 99
AD3d 515, 515, lv denied 20 NY3d 1059). Contrary to defendant’s
contention, the court did not abuse its discretion in determining that
“substantial justice dictated denial of resentencing, given
defendant’s violent criminal history and poor prison disciplinary
record” (People v Alvarez, 94 AD3d 587, 587, lv denied 19 NY3d 956;
see People v Welch, 110 AD3d 1453, 1453, lv denied 22 NY3d 1044;
People v Gatewood, 87 AD3d 825, 826, lv denied 17 NY3d 903), and “the
seriousness of the instant offense” (People v Parker, 107 AD3d 1017,
                                 -2-                  334
                                                KA 15-01855

1019, lv denied 21 NY3d 1076).




Entered:   March 24, 2017              Frances E. Cafarell
                                       Clerk of the Court
