People v McFadden

2015 NY Slip Op 02996 [127 AD3d 1340]

April 9, 2015

Appellate Division, Third Department

As corrected through Wednesday, June 3, 2015

[*1]

The People of the State of New York, Respondent, vKareem McFadden, Appellant.

Aaron A. Louridas, Delmar, for appellant.

James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered August 6, 2012, which revoked defendant's probation and resentenced him to aperiod of imprisonment.

In satisfaction of a five-count indictment, defendant entered a guilty plea to criminalpossession of a controlled substance in the third degree and waived his right to appeal, inexchange for a sentencing promise of between five years of probation and41/2 years in prison with two years of postrelease supervision (hereinafterPRS). Sentencing was delayed so that defendant could complete inpatient rehabilitation.On February 27, 2012, based upon his positive participation in rehabilitation, CountyCourt sentenced him to five years of probation, six months of which was to be served injail, conditioned upon, among other things, intensive supervision and continuingsuccessful inpatient treatment. Defendant did not appeal from that judgment.

Thereafter, defendant was twice charged with violating probation. He was foundguilty 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 wassentenced on August 1, 2012 to 71/2 years in prison with two years ofPRS, and filed the instant notice of appeal pro se the next day. He was thereafterresentenced on August 6, 2012 for that second probation violation to 41/2years in prison with two years of PRS, but did not file another notice of [*2]appeal. Defendant now appeals.^[FN*]

Defendant's sole contention on appeal is that the subsequent resentence imposed byCounty Court was harsh and excessive. As a preliminary matter, we note that defendantfailed to file a notice of appeal from the resentencing. However, despite the notice ofappeal being premature with respect thereto, we will exercise our discretion and treat thenotice of appeal as valid (see CPL 460.10 [6]; People v Shan, 117 AD3d1098, 1098 [2014], lv denied 23 NY3d 1042 [2014]; People v Brainard, 111 AD3d1162, 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 fromchallenging the severity of the resentence (see People v Lavalley, 100 AD3d 1151, 1151 n [2012]; People v Ross, 67 AD3d1130, 1130 [2009]).

Addressing the merits, the record reflects that County Court considered all of therelevant factors, including defendant's lengthy criminal history and repeated violations ofprobation and his discharge from treatment for multiple transgressions. Given that therecord discloses neither the presence of extraordinary circumstances nor an abuse ofsentencing discretion warranting a reduction of the sentence in the interest of justice, itwill not be disturbed (see Peoplev 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 isaffirmed.

Footnote *:Defendant's pro senotice 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 recordbefore 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 thesecond probation violation. We exercise our discretion to overlook this inaccuracy(see CPL 460.10 [6]; People v Pittman, 119 AD3d 1242, 1242 [2014]).