| People v Grayson |
| 2018 NY Slip Op 08373 [167 AD3d 1076] |
| December 6, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Johnathan D. Grayson, Appellant. |
Adam W. Toraya, Albany, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Appeal from a judgment of the County Court of Broome County (Dooley, J.), renderedSeptember 27, 2016, convicting defendant upon his plea of guilty of the crime of attemptedcriminal possession of a weapon in the second degree.
Defendant waived indictment and agreed to be prosecuted pursuant to a superior courtinformation charging him with one count of criminal possession of a weapon in the seconddegree. Pursuant to a negotiated plea agreement, defendant thereafter pleaded guilty to thereduced charge of attempted criminal possession of a weapon in the second degree with arecommended prison term of three years followed by two years of postrelease supervision.County Court sentenced defendant in conformity with the plea agreement, and defendant nowappeals.
Although defendant contends that the sentence imposed is harsh and excessive, wedisagree.[FN*] "A sentencethat falls within the permissible statutory range will not be disturbed unless it can be shown thatthe sentencing court abused its discretion or extraordinary circumstances exist warranting amodification" (People vWestmoreland, 164 AD3d 1550, 1550 [2018] [internal quotation marks and citationsomitted]; accord People v Stone,164 AD3d 1577, 1578 [2018]). Defendant was convicted of a class D violent felony forwhich he could have received a determinate prison term ranging from two to seven years(see Penal Law §§ 70.02 [1] [b], [c]; [3] [c]; 110.05 [5]; 265.03 [1][b]). Here, the three-year prison term contemplated by the plea agreement and imposed byCounty Court was only one year more than the statutory minimum term of imprisonment and, inlight of defendant's escalating history of criminal behavior, we discern no extraordinarycircumstances or abuse of discretion warranting a reduction of the sentence in the interest ofjustice (see People v O'Leary, 164AD3d 1576, 1576 [2018]).
Garry, P.J., Egan Jr., Clark, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant argues that his waiverof the right to appeal was invalid, but the People acknowledge—and the recordreflects—that there was no waiver of the right to appeal in this matter. Hence, defendant'schallenge to the sentence imposed is not precluded (see generally People v Salmans, 49 AD3d 961, 961 [2008]).