| People v Lerario |
| 2008 NY Slip Op 03525 [50 AD3d 1396] |
| April 24, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Frank Lerario,Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
In January 2002, defendant was charged in an 11-count indictment with various drug-relatedcrimes and ultimately pleaded guilty to criminal possession of a controlled substance in thesecond degree, criminal possession of a weapon in the third degree and criminal sale of acontrolled substance in the fifth degree in full satisfaction thereof (People v Lerario, 1 AD3d 635,635-636 [2003], lv denied 2 NY3d 742 [2004]). Defendant thereafter was sentenced, as asecond felony offender, to an aggregate term of 10 years to life in prison (id. at 636).County Court granted defendant's subsequent motion for resentencing with regard to hisconviction of criminal possession of a controlled substance in the second degree pursuant to theprovisions of the Drug Law Reform Act of 2005 (see L 2005, ch 643) and, following ahearing, resentenced defendant, by judgment rendered May 12, 2006 and amended judgmentrendered June 21, 2006, to a prison term of eight years and five years of postreleasesupervision.[FN*]This appeal by defendant ensued.[*2]
Preliminarily, we decline the People's invitation todismiss the instant appeal because defendant appealed from only County Court's May 12, 2006judgment. Rather, we will exercise our discretion, in the interest of justice, and treat the notice ofappeal as valid (see CPL 460.10 [6]).
Turning to the merits, defendant's sole contention on appeal is that the resentence imposed isharsh and excessive. We cannot agree. The determinate term that defendant received uponresentencing was well within the permissible statutory range (see Penal Law §70.71 [3] [b] [ii]; § 220.18) and, upon our review of the record as a whole, and taking intoconsideration the serious nature of the underlying crimes and defendant's criminal history, weperceive no abuse of discretion or extraordinary circumstances warranting a reduction thereof (see People v Marrero, 41 AD3d1091 [2007]; People vThompson, 33 AD3d 1131 [2006]).
Peters, J.P., Kane, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: The sentences previouslyimposed with regard to defendant's conviction for criminal possession of a weapon in the thirddegree (2 to 4 years concurrent) and criminal sale of a controlled substance in the fifth degree (2to 4 years to be served consecutively to the sentence imposed for criminal possession of acontrolled substance in the second degree) remained intact.