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

43
KA 12-01615
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

MICHAEL STANTON, DEFENDANT-APPELLANT.


REBECCA CURRIER, AUBURN, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Cayuga County Court (Thomas G. Leone,
J.), entered June 22, 2012. The order denied the application of
defendant for resentencing pursuant to CPL 440.46.

     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 CPL 440.46, the 2009 Drug Law
Reform Act. As the People correctly concede, this appeal is not moot
even though the maximum sentence for defendant’s original drug
conviction has now expired. Defendant “was sentenced in another case
involving a later crime while he was still imprisoned on the earlier
charge. If he is resentenced on the earlier charge, that resentencing
could affect the time credited toward his later sentence” (People v
Paulin, 17 NY3d 238, 242; see People v Nieves, 94 AD3d 671, 672).

     We nevertheless conclude that County Court properly exercised its
discretion in determining that substantial justice required denial of
his application (see People v Gatewood, 87 AD3d 825, 826, lv denied 17
NY3d 903). It is well established that “[r]esentencing is not
automatic, and courts may deny the applications of persons who ‘have
shown by their conduct that they do not deserve relief from their
sentences’ ” (People v Colon, 110 AD3d 438, 438, quoting Paulin, 17
NY3d at 244). Although defendant is a military veteran who
participated in many vocational programs while incarcerated and had
only two minor disciplinary infractions during his incarceration,
“[t]he court properly concluded that defendant’s chronic inability to
control his behavior while at liberty outweighed” his positive
institutional record (People v Correa, 83 AD3d 555, 556, lv denied 17
NY3d 805; see People v Hurst, 83 AD3d 499, 499, lv denied 17 NY3d 796;
                                 -2-                         43
                                                      KA 12-01615

cf. People v Berry, 89 AD3d 954, 955-956).




Entered:   February 7, 2014                  Frances E. Cafarell
                                             Clerk of the Court
