| People v Sabin |
| 2010 NY Slip Op 04473 [73 AD3d 1390] |
| May 27, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Abraham R.Sabin, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Franklin County (Clute, J.),rendered April 9, 2009, convicting defendant upon his plea of guilty of the crime of sexual abusein the first degree.
On August 25, 2008, while defendant was giving a piggy-back ride to a seven-year-old girlwhom he had spent the entire summer babysitting, he slipped his hand under her pants andrubbed her vagina. Less than a week later, he was charged in Bangor Town Court with sexualabuse in the first degree and two counts of endangering the welfare of a child. He subsequentlyexecuted a written waiver of indictment in open court, consenting to be prosecuted by a superiorcourt information, and County Court approved the waiver. Thereafter, with the understandingthat his plea would satisfy all of the charges as well as any alleged conduct with the victimoccurring between June 2008 and August 2008, defendant pleaded guilty to sexual abuse in thefirst degree and was sentenced to seven years in prison followed by 10 years of postreleasesupervision. Defendant appeals.
Defendant asserts that County Court never acquired jurisdiction over this matter because "itappears" that the local criminal court did not hold defendant for action of the grand jury orforward proper divestiture documentation to County Court (see CPL 180.30, 195.10). Inaddition to demonstrating that defendant waived his right to a preliminary hearing, however, therecord [*2]establishes that divestitureforms—accompanied by the felony complaint, a securing order and a supportingdeposition—were properly transmitted to County Court before defendant executed theindictment waiver (see CPL 180.30; see generally People v Brown, 47 AD3d 1162, 1163 [2008], lvdenied 10 NY3d 838 [2008]). Moreover, in approving defendant's waiver of indictment,County Court indicated that the waiver fully complied with the requirements of CPL 195.10 and195.20 (see People v Barber, 280 AD2d 691, 693 [2001], lv denied 96 NY2d 825[2001]; People v Valenti, 264 AD2d 904, 905 [1999], lv denied 94 NY2d 926[2000]). Thus, "[a]ccording the judicial proceedings a presumption of regularity and in view ofdefendant's failure to submit proof to the contrary, we find that the waiver of indictment wasvalid, no violation of CPL 195.10 was established" and County Court properly acquiredjurisdiction (People v Barber, 280 AD2d at 693 [citation omitted]; see People vWashington, 138 AD2d 857, 858 [1988]).
We likewise reject defendant's contention that the sentence imposed by County Court washarsh and excessive. The record discloses that defendant and the victim's mother were bestfriends and that he volunteered to babysit for the victim partly based on his awareness that themother was reluctant to leave the victim with someone she did not trust. Moreover, the incidentleading to defendant's arrest occurred within five feet of the mother while she, defendant and thevictim were taking a walk. Accordingly, given the nature of the crime, the age of the victim anddefendant's exploitation of the family's trust, we discern no extraordinary circumstances or abuseof discretion warranting a reduction of defendant's sentence (see People v Frary, 29 AD3d 1223, 1226 [2006], lv denied7 NY3d 788 [2006]; People v Agan, 301 AD2d 968, 968 [2003]; People vShook, 294 AD2d 710, 713-714 [2002], lv denied 98 NY2d 702 [2002]).
Cardona, P.J., Spain, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.