People v Rivera
2013 NY Slip Op 04090 [107 AD3d 425]
June 6, 2013
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, July 31, 2013


The People of the State of New York, Respondent,
v
Omar Rivera, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Samantha L. Stern of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Rafael Curbelo of counsel), for respondent.

Order, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered November 18, 2011, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.

The court properly exercised its discretion in determining that substantial justice dictated the denial of resentencing. In making this determination, the court made "an individualized assessment of all the relevant facts and circumstances, including, among other things, . . . defendant's recidivism [and] misconduct while incarcerated" (People v Marti, 81 AD3d 418, 418 [1st Dept 2011], lv denied 17 NY3d 798 [2011] [citation omitted]). Concur—Gonzalez, P.J., Sweeny, Richter and Clark, JJ. [Prior Case History: 33 Misc 3d 1223(A), 2011 NY Slip Op 52082(U).]