People v. McFadden

Appellate Division of the Supreme Court of the State of New York

Apr 9, 2015

106021

Versions:127 A.D.3d 1340

7 N.Y.S.3d 641

In satisfaction of a five-count indictment, defendant entered a guilty plea to criminal possession of a controlled substance in the third degree and waived his right to appeal, in exchange for a sentencing promise of between five years of probation and 41/₂ years in prison with two years of postrelease supervision (hereinafter PRS). Sentencing was delayed so that defendant could complete inpatient rehabilitation. On February 27, 2012, based upon his positive participation in rehabilitation, County Court sentenced him to five years of probation, six months of which was to be served in jail, conditioned upon, among other things, intensive supervision and continuing successful inpatient treatment. Defendant did not appeal from that judgment.

Thereafter, defendant was twice charged with violating probation. He was found guilty as charged in the first violation petition and conditional probation was continued. After defendant entered a guilty plea to the second probation violation petition, he was sentenced on August 1, 2012 to 71/₂ years in prison with two years of PRS, and filed the instant notice of appeal pro se the next day. He was thereafter resentenced on August 6, 2012 for that second probation violation to 41/₂ years in prison with two years of PRS, but did not file another notice of appeal. Defendant now appeals.^*

Defendant‘s sole contention on appeal is that the subsequent resentence imposed by County Court was harsh and excessive. As a preliminary matter, we note that defendant failed to file a notice of appeal from the resentencing. However, despite the notice of appeal being premature with respect thereto, we will exercise our discretion and treat the notice of appeal as valid (see CPL 460.10 [6]; People v Shan, 117 AD3d 1098, 1098 [2014], lv denied 23 NY3d 1042 [2014]; People v Brainard, 111 AD3d 1162, 1163 n 2 [2013]; People v Therrien, 78 AD3d 1331, 1332 [2010]). Further, his appeal waiver in connection with the original sentence does not preclude him from challenging the severity of the resentence (see People v Lavalley, 100 AD3d 1151, 1151 n [2012]; People v Ross, 67 AD3d 1130, 1130 [2009]).

Addressing the merits, the record reflects that County Court considered all of the relevant factors, including defendant‘s lengthy criminal history and repeated violations of probation and his discharge from treatment for multiple transgressions. Given that the record discloses neither the presence of extraordinary circumstances nor an abuse of sentencing discretion warranting a reduction of the sentence in the interest of justice, it will not be disturbed (see People v Gassner, 118 AD3d 1221, 1222 [2014], lv denied 23 NY3d 1062 [2014]; People v Lavalley, 100 AD3d at 1152).

Garry, J.P., Rose, Lynch and Devine, JJ., concur. Ordered that the judgment is affirmed.

Notes

* Defendant‘s pro se notice of appeal is from a “Judgment of Conviction rendered [August 1], 2011” (emphasis added). While there is no such 2011 judgment of conviction in the record before us, it appears that when defendant, pro se, filed that notice of appeal on August 2, 2012, he intended to appeal from the August 1, 2012 initial sentencing on the second probation violation. We exercise our discretion to overlook this inaccuracy (see CPL 460.10 [6]; ).