| People v Kime |
| 2012 NY Slip Op 04038 [95 AD3d 1562] |
| May 24, 2012 |
| Appellate Division, Third Department |
| 2—The People of the State of New York, Respondent, vRyan Kime, Appellant. |
—[*1] D. Holley Carnwright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Czajka, J.), rendered June 18, 2010 in UlsterCounty, convicting defendant upon his plea of guilty of the crime of burglary in the seconddegree.
Defendant waived indictment, pleaded guilty to burglary in the second degree and executed awritten waiver of the right to appeal. The judge who presided over the plea proceedings indicatedthat, under the terms of the plea agreement, defendant would be sentenced to 3½ years inprison, followed by five years of postrelease supervision, to run concurrently with the sentencesimposed on other unrelated crimes. However, a different judge was assigned to the case atsentencing who refused to impose the term of imprisonment set forth in the plea agreement dueto the absence of mitigating circumstances. Prior to imposing sentence, Supreme Court gavedefendant an opportunity to withdraw his plea, which he declined. The court proceeded tosentence defendant to four years in prison, followed by five years of postrelease supervision, torun consecutively to the sentences he was serving on the other crimes. Defendant now appeals.[*2]
Defendant's sole contention is that the sentence is harshand excessive.[FN*]We find his argument to be unpersuasive. Defendant has a lengthy criminal record and had beenreleased on bail pending the disposition of other crimes when he committed the crime inquestion. In view of this, and given that the sentence was significantly less than the maximum hecould have received if convicted after trial (see Penal Law§ 70.02 [3] [b]), we find no extraordinary circumstances nor abuse of discretion warrantinga reduction of the sentence in the interest of justice (see People v Merchant, 79 AD3d 1526, 1526-1527 [2010];People v Thompkins, 58 AD3d 1068, 1069 [2009], lv denied 12 NY3d 822[2009]). Therefore, the judgment is affirmed.
Rose, J.P., Lahtinen, Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: We note that defendant wasspecifically advised by Supreme Court at sentencing that he had the right to appeal the sentence.In the circumstances presented, the waiver of appeal does not preclude this challenge (see People v Borden, 91 AD3d1124, 1125 [2012]; People vMiddleton, 72 AD3d 1336, 1337 [2010]).