| People v Capone |
| 2018 NY Slip Op 02684 [160 AD3d 1221] |
| April 19, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Aaron T. Capone, Appellant. |
Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
Appeals (1) from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered August 17, 2015, convicting defendant upon his plea of guilty of the crime ofaggravated driving while intoxicated, and (2) from a judgment of said court (Champagne, J.),rendered October 11, 2016, which revoked defendant's probation and imposed a sentence ofimprisonment.
Defendant pleaded guilty to aggravated driving while intoxicated and waived his right toappeal. After successfully completing a period of interim probation, County Court (Richards, J.)sentenced defendant to five years of probation. Thereafter, defendant admitted to violating acondition of his probation by consuming alcohol. County Court (Champagne, J.) then revokeddefendant's probation and resentenced him to 1 to 3 years in prison followed by three years ofconditional discharge. Defendant appeals from both judgments.
Defendant's sole contention on appeal is that the negotiated resentence was harsh andexcessive.[FN*] Wedisagree. Given defendant's acknowledgment that he repeatedly consumed alcohol while onprobation, his lengthy criminal history and that the agreed-upon sentence was the statutoryminimum prison term (see Penal Law § 70.00 [2] [e]; [3] [b]), we find no[*2]extraordinary circumstances or any abuse of discretionwarranting a reduction of the resentence in the interest of justice (see People v Woodruff, 136 AD3d1073, 1074 [2016]; People vBrand, 100 AD3d 1154, 1154 [2012]).
Garry, P.J., Egan Jr., Lynch, Rumsey and Pritzker, JJ., concur. Ordered that the judgmentsare affirmed.
Footnote *:Defendant's original waiver ofthe right to appeal does not preclude his challenge to the resentence (see People v Middlemiss, 149 AD3d1421, 1422 n [2017]).