People v. Burg

Jun 17, 1999
Versions:262 A.D.2d 796
692 N.Y.S.2d 243
1999 N.Y. App. Div. LEXIS 6940

—Appeal from a judgment of the County Court of Schoharie County (Bartlett, III, J.), rendered January 28, 1998, convicting defendant upon his plea of guilty of the crime of murder in the second degree.

Defendant pleaded guilty to the crime of depraved indifference murder (Penal Law § 125.25 [4]) in satisfaction of, inter alia, a multicount indictment relating to the death of an eight-month-old infant placed in defendant’s care who died from blunt force injuries to her head and torso. Pursuant to his plea agreement, defendant waived his right to appeal. The only commitment County Court made was to set a ceiling of a sentence of 20 years to life in prison, with a promise to afford defendant an opportunity to withdraw his plea in the event that it deemed that a harsher sentence was appropriate. The court ultimately sentenced defendant to a prison term of 20 years to life and defendant now appeals.

We affirm. Inasmuch as defendant waived his right to appeal as part of a knowing, voluntary and intelligent plea of guilty, his contention that the sentence imposed was harsh and excessive has not been preserved for our review (see, People v Buchanan, 236 AD2d 741, lv denied 89 NY2d 1032). In any event, were we to consider the argument, we would find it to be unpersuasive. Given defendant’s history, the terms of the negotiated plea agreement and the circumstances surrounding the brutal death of a helpless infant, we would find that the sentence imposed was neither harsh nor excessive, despite the fact that the People recommended a lesser sentence. Furthermore, there are no extraordinary circumstances warranting a reduction thereof in the interest of justice (see, People v Charles, 258 AD2d 740). We have reviewed defendant’s remaining contentions and find them to be without merit.

Cardona, P. J., Mikoll, Yesawich Jr., Carpinello and Graffeo, JJ., concur. Ordered that the judgment is affirmed.