On June 25, 2012, this Court granted, in part, Defendant Francis Manigault's motion for resentencing pursuant to the Drug Law Reform Act of 2009 ^[FN1] (hereinafter, "DLRA") (see, Crim Proc. Law §440.46) (see, People v. Manigault, 36 Misc 3d 1201A [Sup. Ct. Bronx 2012]). The Court accepted Defendant's claim that his present sentence is excessive to the extent that the Court agreed to provide a hearing to decide factual issues that remain in dispute (see generally, People v. Anonymous, 85 AD3d 414 [1st Dept. 2011]). However, after the hearing was scheduled, Defendant announced what amounted to his abandonment of his request for an evidentiary hearing and, therefore, he presented no new evidence for the Court to consider.

Defendant asks for resentencing, after his guilty plea, to one count of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law §220.39[1]). In the Court's June 25, 2012 decision, the underlying facts and the parties' arguments concerning the correctness of the original sentence were fully set forth and will not be otherwise repeated except as necessary to provide context here.

Originally, the Court (Ingram, J.) sentenced Defendant to an indeterminate term of fifty-four months to nine years in prison. Defendant is now incarcerated at Gowanda Correctional Facility in Erie County after being returned to custody for parole violations.

Since Defendant was identified as a person who could benefit from addiction treatment, Defendant was referred to TASC and J-CAP, which agencies found him to be drug and alcohol free but that he would benefit from substance abuse therapy. While Defendant was given opportunities to remain [*2]rehabilitated, Defendant chose rather to abscond from the rehabilitation programs, forcing the People to exercise discretion to reinstate the minimum sentence. Defendant has a history of rehabilitation program failures, with his being returned to custody in 2007 and absconding, yet again, within a month; from a work release program.

Defendant's Application

Defendant justifies resentencing by reminding the Court of his abuse problems and pointing to a perception that he is not a violent offender. Defendant says his immediate family will provide support for him in the community and he acknowledges his need for rehabilitation as shown by a claimed positive recent prison disciplinary record with successful work assignments while incarcerated. Defendant says he was merely a low level non-violent drug offender serving a sentence that is too harsh for the offense (see generally, People v. Paulin, 17 NY3d 238 [2011]).

District Attorney's Opposition

In opposition, the prosecutor argues "substantial justice" demands Defendant not be

re-sentenced under the Drug Law Reform Act of 2009 or any other statute. In this regard, the prosecutor says Defendant's repeated conduct bars resentencing, especially because Defendant has returned to prison multiple times and been subject to Tier II and Tier III prison discipline during the period. Likewise, Defendant has a criminal record which includes using aliases for commission of those crimes reaching back to 1989 and occurring in two states. Perhaps most startling is Defendant's abuse of the system when he sought emergency relief from incarceration and absconded when time to return to custody arrived.

Stated another way, because Defendant absconded from rehabilitation programs, the Court must decline a further opportunity to receive special treatment (see generally, People v. McNair, 22 AD3d 376 [1st Dept. 2005]). Clearly, Defendant is not a proper beneficiary of the Drug Law Reform Act of 2009.

Reply

Defendant says the prosecutor does not dispute that he is a non-violent person struggling with narcotics and alcohol abuse. Nevertheless, Defendant notes the prosecutor continues to oppose resentencing upon substantial justice considerations. In response, Defendant excuses his prison conduct and his abandoning rehabilitation upon grounds that the sentenced imposed was unduly punitive, costly, and counterproductive, especially as applied to a non-violent low level person such as himself.

Legal Discussion

As previously found by the Court, Defendant meets the criteria for applying for resentencing under Crim. Proc. Law § 440.46(see generally, People v. Overton, 86 AD3d 4 [2nd Dept. 2011]). However, meeting the resentencing criteria does not mean a person is entitled to resentencing relief pursuant to CPL §70.70. It simply means such person is eligible to apply for relief. Whether he will be resentenced hinges upon the Court's determination whether "substantial justice" dictates that the application be granted or denied under Crim. Proc. Law §440.46 (see generally, People v. Avila, 27 Misc 3d 974 [Sup. Ct. Kings 2010]).

The Court now turns to the ultimate question of whether, after assessing Defendant's background, circumstances, and prison record, he should, in fact, be granted a resentence. Preliminarily, concerning "substantial justice" and the proof required to support resentencing, the Court in its prior decision, directed the parties to submit any additional facts and circumstances that the Court should consider upon the issue of imposition of a new sentence in order for the Court to determine what substantial justice dictates here (see generally, People v. Anderson, 85 AD3d 1043 [2nd Dept. 2011] [substantial justice under the 2005 DLRA resentencing provisions]).

In addition to institutional disciplinary records, the Court suggested that it should consider factors, such as the following, in determining the resentence application vis-a-vis the [*3]rendering of substantial justice: (1) defendant's prior criminal history, (2) the quantity of drugs underlying the current offense, (3) whether the current offense was committed while defendant was on parole or probation, (4) whether defendant has shown remorse, and (5) whether defendant has a history of parole violations (see, People v. Overton, 86 AD3d 4 [ 2nd Dept. 2011]). The parties submitted no additional evidence for the Court's consideration.

There is no dispute that the impetus for the DLRA was legislative wisdom that the then drug laws' mandated sentences were excessively harsh when applied to street-level offenders who possessed or sold only small quantities of illegal drugs in order to feed their own addiction. The legislature determined that mandated sentences were counterproductive in that incarcerating low level offenders was hugely expensive and such lengthy periods of imprisonment were more likely to foil any sincere desire on the offender's part to overcome his addiction and become a law-abiding member of society. Because the DLRA embodies a legislative effort to reverse these so called Rockefeller Drug Laws' effects, the Legislature incorporated a presumption in favor of granting motions for resentencing "unless substantial justice dictates that the application should be denied ^[FN2] " (see, People v. Flores, 27 Misc 3d 1204A [Sup. Ct. Bronx 2010]).

The Court agrees with the prosecutor that "substantial justice" in this case requires that Defendant be denied resentencing. The factors that undermine Defendant's relief include his violation of prison discipline, his criminal record, and his record of absconding. This conduct shows that substantial justice requires that Defendant be denied resentencing.

Prison Discipline

The Court finds disturbing the volume and severity of institutional disciplinary infractions committed by Defendant (see generally, People v. Karim, 85 AD3d 943 [2nd Dept. 2011]). Defendant was involved in seven disciplinary infractions during his incarceration. These include a Tier 2 citation at Ulster Correctional Facility in 2006 for providing false information and violating a direct order. He was also found guilty twice of similar Tier 2 charges at Riverview Correctional Facility and of charges at Hale Creek Facility in the same year. Likewise, in 2007, Petitioner was guilty of a Tier 3 citation at Coxsackie Correctional Facility for violating temporary release regulation and for absconding and last year he was found guilty of two sets of Tier 2 violations at Gowanda Correctional Facility which included smuggling (see generally, People v. Hickman, 85 AD3d 1057 [2nd Dept. 2011]).

Petitioner's Criminal History

As significant as his prison disciplinary problems, Defendant possesses a criminal record that medicates against resentencing. These convictions include a 1988 conviction for Criminal Possession of a Controlled Substance in the Fifth Degree (Penal L. §220.06) while a juvenile and a 1994 conviction for Attempted Criminal Sale of a controlled substance in the Third Degree (Penal L. §§110 and 220.06). The following year, he was convicted of Criminal Sale of a Controlled Substance in the Fifth Degree (Penal L. §220.31) and in 1999 he was convicted of Attempted Criminal Sale of a Controlled Substance in the Third Degree (Penal L. §§110 and 220.39). The prosecutor also reports that Defendant was convicted twice of Possession of Cocaine in South Carolina (SC Statute §44-53-370).

Absconding

[*4]Finally. Defendant has a history of rehabilitation program failures ending in his absconding from rehabilitation, that includes his being returned to custody in 2007 and absconding, yet again, within a month, from a work release program. Such conduct shows an unrepented person who does not deserve resentencing.

Substantial Justice

Under the circumstances, it would be improvident for the Court to find that "substantial justice" does anything except require denial of Defendant's resentencing pursuant to CPL §440.46 (see generally, People v. Miller, 2011 NY Slip Op 07658 [2nd Dept. 2011]). Defendant fails to convince that he meets resentencing standards upon any other ground.

In this regard, the Court cannot overlook Defendant's criminal record, prison disciplinary record, and subsequent absconding even upon grounds he was addicted or that the sentence imposed is unduly punitive, costly, and counterproductive. Defendant's conduct is too sever to justify a finding that "substantial justice" justifies resentencing.

While it is true that a defendant, who is eligible for resentencing, enjoys "a presumption in favor of granting a motion for resentencing relief absent a showing that substantial justice dictates the denial thereof " (see generally, People v. Beasley, 47 AD3d 639 [2nd Dept. 2008]), that presumption has evaporated here. Upon review of the record, and taking into account that Defendant submitted no evidence at the hearing, the Court finds that "substantial justice" does not support resentencing (see generally, People v. Anderson, 85 AD3d 1043 [2nd Dept. 2011]).

BASED UPON the foregoing, it is

ORDERED that the branch of Defendant s motion, requesting the Court resentence Defendant pursuant to Crim. Proc. Law §440.46, is DENIED.

The foregoing ^[FN3] constitutes the Decision and Order of this Court.

Dated: Bronx, New York

October 26, 2012

___________________________DOMINIC R. MASSARO, JSC