People v Suya
2011 NY Slip Op 06538 [87 AD3d 921]
September 22, 2011
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, November 9, 2011


The People of the State of New York, Respondent,
v
Felix Suya, Appellant.

—[*1]

Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Jason S. Whitehead of counsel), for respondent.

Order, Supreme Court, Bronx County (Richard L. Price, J.), entered on or about January 20, 2011, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.

As conceded by the People, defendant's 1999 robbery conviction did not constitute an "exclusion offense" that rendered him ineligible for resentencing pursuant to CPL 440.46. Nevertheless, the court properly exercised its discretion in concluding that substantial justice dictated denial of defendant's application for resentencing (see People v Gonzalez, 29 AD3d 400 [2006], lv denied 7 NY3d 867 [2006]). Defendant's criminal record is very serious and includes violent crimes. In addition, his prison disciplinary record is extraordinarily poor. Concur—Saxe, J.P., Friedman, Acosta, DeGrasse and Abdus-Salaam, JJ.