
    The People of the State of New York, Respondent, v Eduardo Rivera, Appellant.
    [938 NYS2d 433]
   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).]  