People v Appleby

2010 NY Slip Op 09582 [79 AD3d 1533]

December 30, 2010

Appellate Division, Third Department

As corrected through Wednesday, February 16, 2011

The People of the State of New York, Respondent, v Justin M. Appleby,Appellant.

—[*1]Frank A. Sarat, Homer, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (John M. Tuppen of counsel), forrespondent.

Egan Jr., J. Appeal from a judgment of the County Court of Chemung County (Buckley, J.),rendered March 1, 2010, convicting defendant upon his plea of guilty of the crime of leaving the sceneof an accident without reporting.

Defendant pleaded guilty to a single-count indictment charging him with leaving the scene of anaccident without reporting, which resulted in the death of a bicyclist, and was sentenced to theagreed-upon prison term of 1 to 3 years. Defendant now appeals, contending only that the sentenceimposed was harsh and excessive.

"Absent an abuse of discretion or extraordinary circumstances warranting a reduction of thesentence imposed, a sentence that falls within the permissible statutory range will not be disturbed" (People v Hanrahan, 9 AD3d 689[2004] [citations omitted]; see People vKennedy, 46 AD3d 1099, 1101 [2007], lv denied 10 NY3d 841 [2008]; People v Brown, 46 AD3d 949, 952[2007], lv denied 10 NY3d 808 [2008]). Here, the sentence imposed was within thepermissible statutory range for a class D nonviolent felony (see Penal Law § 70.00 [2][d]; [3] [b] [21/3 to 7 years]) and, contrary to defendant's assertion, it is apparent thatthe sentencing court took into consideration defendant's family circumstances in pronouncing sentence.Upon our [*2]review of the record as a whole, we cannot say thatCounty Court abused its discretion in this regard or that defendant otherwise demonstrated theexistence of extraordinary circumstances warranting a reduction of his sentence in the interest of justice.Accordingly, the judgment is affirmed.

Mercure, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.