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

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]). Defendant had an extensive criminal history and a poor prison disciplinary record, and these factors outweighed any mitigating factors. In particular, defendant had an opportunity to have the underlying drug conviction reduced to a misdemeanor by completing a drug treatment program; instead, he absconded from the program and committed a robbery. Concur— Tom, J.E, Andrias, Catterson, Richter and Abdus-Salaam, JJ. [Prior Case History: 27 Misc 3d 1217(A), 2010 NY Slip Op 50788(U).]