People v. Moore , 976 N.Y.S.2d 377 ( 2013 )

Order, Supreme Court, Bronx County (Alvin M. Yearwood, J.), entered April 30, 2012, 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 generally People v Gonzalez, 29 AD3d 400 [2006], lv denied 7 NY3d 867 [2006]). Defendant’s history of recidivism, while enrolled in the drug treatment program he attended as part of his plea agreement, and while on parole, outweighed the modest positive factors cited by defendant in support of his motion (see e.g. People v Spann, 88 AD3d 597 [1st Dept 2011], lv denied 18 NY3d 886 [2012]). Concur — Gonzalez, P.J., Andrias, Saxe, Richter and Clark, JJ.