| People v Minor |
| 2007 NY Slip Op 08126 [45 AD3d 885] |
| November 1, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Donald J.Minor, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Washington County (Berke, J.),rendered May 24, 2005, upon a verdict convicting defendant of the crimes of criminal sale of acontrolled substance in the third degree (two counts), criminal possession of a controlledsubstance in the third degree (two counts) and conspiracy in the fourth degree.
In July and August 2004, defendant sold crack cocaine to an informant, resulting in anindictment charging him with two counts of criminal sale of a controlled substance in the thirddegree, two counts of criminal possession of a controlled substance in the third degree andconspiracy in the fourth degree. By a second indictment, he was charged with criminalpossession of a controlled substance in the third degree, arising out of an incident duringdefendant's booking process where a bag of crack cocaine was found on the floor; it was allegedthat the cocaine had been possessed by defendant.
With the two matters consolidated for trial and defendant having rejected numerous pleaoffers, a jury trial ensued. Shortly after the commencement of deliberations, County Court was[*2]advised by the jury that it could not reach a verdict on thepossession charge relating to the bag of crack cocaine found during defendant's booking process.As the jurors had deliberated for a short period of time, County Court instructed them to resumetheir deliberations. Later, they twice requested permission to leave for the night and return thenext morning to resume deliberations. During such communication, they informed the court thatthey had reached a verdict on all but this possession count. Without the consent of defendant,County Court took a partial verdict from the jury. It found defendant guilty on all counts relatingto the controlled buys in July and August 2004. After deliberations the next morning, defendantwas found not guilty of the criminal possession charge emanating from the booking.
At sentencing, defendant spoke on his own behalf commenting, among other things, uponmistakes allegedly made during his trial. Despite the People's request and defendant's qualifyingstatus, County Court declined to sentence defendant as a persistent felon. Instead, the courtsentenced him as a first felony offender to the maximum sentence permitted on each count,constituting an aggregate term of incarceration of 16
Defendant's challenge to the instructions given to the jury is unpreserved and, in any event,without merit (see People v Gause,38 AD3d 999, 1000-1001 [2007], lv denied 9 NY3d 865 [2007]). Nor was defendantdenied the opportunity to speak on his own behalf at sentencing. While County Court attemptedto focus defendant's comments upon the issue of sentencing, defendant was permitted to makehis statement in its entirety.
Turning to the issue of sentencing, it is well settled that the determination of what constitutesan appropriate sentence lies within the sound discretion of the trial court. Absent extraordinarycircumstances, the court's decision in this regard will not be disturbed (see People v Martinez, 40 AD3d1309, 1310 [2007]). County Court declined to sentence defendant as a persistent felonyoffender, despite his qualifying status. While each sentence meted out was the maximum allowedfor that crime, County Court recited numerous pertinent factors to support the sentence imposed.These included defendant's lengthy criminal history, the nature of the crimes committed and theoverwhelming evidence at trial. As these are all appropriate considerations (see People vCox, 122 AD2d 487, 488 [1986]), and the record reveals no evidence that defendant waspenalized for exercising his right to trial (see People v Sheremet, 41 AD3d 1038, 1040 [2007], lvdenied 9 NY3d 881 [2007]), we will not disturb the sentence.
Mercure, J.P., Crew III, Spain and Rose, JJ., concur. Ordered that the judgment is affirmed.