People v. Colon

Order, Supreme Court, New York County (Renee A. White, J.), entered on or about November 22, 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 denial of the motion (see e.g. People v Gonzalez, 29 AD3d 400 [2006], lv denied 7 NY3d 867 [2006]). Resentencing 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 Paulin, 17 NY3d 238, 244 [2011]). Defendant has demonstrated a “chronic inability to control his behavior while at liberty” (People v Correa, 83 AD3d 555, 556 [1st Dept 2011], lv denied 17 NY3d 805 [2011]), committing numerous crimes while on parole and even while his resentencing application was pending. Under the circumstances, evidence of defendant’s rehabilitation while incarcerated and other positive factors was outweighed by the factors militating against resentencing. Concur — Mazzarelli, J.P., Renwick, DeGrasse, Freedman and Feinman, JJ.