| People v Ross |
| 2009 NY Slip Op 08091 [67 AD3d 1130] |
| November 12, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kathleen A.Ross, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered September 15, 2008, which resentenced defendant following her conviction of thecrime of assault in the second degree.
Following an incident in which defendant stabbed her paramour with a knife, she wascharged with attempted murder in the second degree, assault in the first degree and criminalpossession of a weapon in the third degree. She pleaded guilty to assault in the second degree infull satisfaction of the charges and waived her right to appeal. Under the terms of the pleaagreement, she was to be sentenced to a one-year term of interim probation which, uponsuccessful completion, would be followed by a five-year term of probation. Defendantsuccessfully completed her interim probation and was sentenced, in accordance with the plea, tofive years of probation. Thereafter, she violated the terms of her probation on a number ofoccasions and each time County Court continued her probation provided that she participate ininpatient substance abuse treatment counseling. Defendant participated in counseling at varioustreatment facilities, none of which was successful, and, when she was discharged from the lastfacility, County Court revoked her probation and resentenced her to three years in prison to befollowed by three years of postrelease supervision. Defendant now appeals.
Preliminarily, we note that, given the resentencing, defendant is not precluded by her waiverof the right to appeal entered in connection with the original plea from challenging either theseverity of the resentence or the effectiveness of counsel (see People v Gurrola, 43 AD3d[*2]1230, 1231 [2007]; People v Rowland, 11 AD3d 825 [2004]). Turning to the merits,we do not find that the prison term imposed upon resentencing is harsh or excessive. CountyCourt afforded defendant numerous opportunities to comply with the conditions of her probationand address her substance abuse problems, which she failed to do. This, together withdefendant's lengthy criminal record and the violent nature of her conduct, leads us to concludethat neither extraordinary circumstances nor any abuse of discretion warrants a reduction of hersentence in the interest of justice (seePeople v Hunter, 62 AD3d 1207, 1208 [2009]; People v Burmingham, 55 AD3d 1150, 1151 [2008]). Uponreviewing the record, we find defendant's claim of ineffective assistance of counsel similarlyunavailing.
Mercure, J.P., Lahtinen, Kavanagh, Stein and Garry, JJ., concur. Ordered that the judgmentis affirmed.