| People v Miller |
| 2014 NY Slip Op 03552 [117 AD3d 1237] |
| May 15, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRaymond C. Miller, Appellant. |
Richard V. Manning, Parishville, for appellant.
Nicole M. Duve, District Attorney, Canton (Alexander Lesyk of counsel), forrespondent.
Garry, J. Appeals from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered November 15, 2011, convicting defendant upon his plea of guiltyof the crimes of grand larceny in the fourth degree and attempted assault in the seconddegree.
While subject to probation supervision, defendant removed and discarded a GPSdevice from his ankle. As relevant here, he was thereafter charged with grand larceny inthe fourth degree, upon the stated basis that the value of the device exceeded $1,000(see Penal Law § 155.30 [1]).[FN1]
Defendant was returned to custody and, while in jail, was involved in an altercationwith another inmate, resulting in a charge of assault in the second degree. Defendantultimately entered into a plea bargain encompassing both crimes, pleading guilty, as asecond felony offender, to grand larceny in the fourth degree and attempted assault in thesecond degree, with a commitment to concurrent sentences of 20 to 40 months in prisonon each conviction.
[*2] While awaitingsentencing, defendant was arrested on a new offense, absconded, and was ultimatelyextradited from California. He thereafter moved to withdraw his plea, arguing, amongother things, that the indictment charging him with grand larceny in the fourth degreewas jurisdictionally defective because it charged him with violating Penal Law§ 155.30 (2) rather than Penal Law § 155.30 (1), yet failed toallege facts constituting that crime. County Court denied the motion and amended theindictment to reflect the correct subsection. The court then found that defendant hadviolated the plea agreement by failing to comply with the conditions of his pretrialrelease—which included both not engaging in criminal activity and reporting toprobation as directed—and enhanced the sentence to consecutive prison terms of22 to 44 months on each conviction. Defendant was also ordered to pay $3,592.83 inrestitution. Defendant appeals.[FN2]
Defendant's contention that the indictment charging grand larceny in the fourthdegree is jurisdictionally defective does not warrant reversal. The indictment allegedfacts constituting the elements of Penal Law § 155.30 (1), the grand jurywas charged with the law as such, and the People proceeded at all times on the theorythat defendant had committed acts in violation of Penal Law § 155.30 (1),not Penal Law § 155.30 (2) (see People v Garcia, 79 AD3d 1248, 1249 [2010], lvdenied 16 NY3d 797 [2011]; People v Miller, 23 AD3d 699, 701 [2005], lvdenied 6 NY3d 815 [2006]).
Next, defendant's contention that County Court erred in imposing an enhancedsentence is without merit. During the plea colloquy, the court expressly adviseddefendant, and he acknowledged and accepted, that his failure to comply with any of therelease conditions could result in a sentence of up to eight years in state prison (see People v Davis, 30 AD3d893, 894 [2006], lv denied 7 NY3d 847 [2006]). Defendant violated theterms of his release in several respects, by failing to report to probation as required,failing to appear in the Potsdam Town Court after harassment complaints were filed thereagainst him, and absconding to California, where he was later arrested. These violationsclearly justified County Court's imposition of an enhanced sentence (see People v Straight, 106AD3d 1190, 1191-1192 [2013]; People v Smith, 100 AD3d 1102, 1103 [2012]). Further,we do not find the sentence imposed harsh or excessive. In light of defendant's extensive20-year criminal history, repeated parole violations, and multiple flights from the county,we discern no extraordinary circumstances or abuse of the court's discretion warrantingmodification of his sentence (see People v Coutant, 111 AD3d 981, 983 [2013]).
Finally, defendant's claim that the record does not support restitution beyond thevalue of the GPS device is unpreserved for our review, as defendant failed to request ahearing or otherwise contest the sum at sentencing (see People v Bressard, 112 AD3d 988, 989 [2013], lvdenied 22 NY3d 1137 [2014]; People v Smith, 100 AD3d at 1102-1103). Inany event, we find the sum imposed to be fully supported in the record.
Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The indictmentreferenced Penal Law § 155.30 (2), and the description contained thereinstated the basis corresponding to subsection (1); other charges within the indictment werelater dismissed.
Footnote 2:The People concede thatdefendant's waivers of appeal were defective and are, thus, unenforceable.