| People v Smith |
| 2011 NY Slip Op 06503 [87 AD3d 1203] |
| September 22, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Bambi D.Smith, Also Known as Bambi D. Hoffman-Miller, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton, for respondent.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), renderedNovember 9, 2009, which revoked defendant's probation and imposed a sentence ofimprisonment.
Defendant pleaded guilty to attempted robbery in the second degree and forgery in the seconddegree in satisfaction of the charges contained in an indictment and superior court information.She also waived her right to appeal. During the plea proceedings, there was some discussion thatdefendant would receive a split sentence, but instead, she was placed on interim probation forone year. Defendant subsequently violated the terms of her interim probation and was sentencedto six months in jail and five years of probation on the attempted robbery conviction as well asfive years of probation on the forgery conviction. Thereafter, following a hearing, she was foundguilty of violating the conditions of her probationary sentence. Resentencing, however, wasadjourned to allow defendant time to go to trial on an intervening indictment. In the meantime,defendant again violated the conditions of her probation and a warrant was issued for her arrest.Her probation was subsequently revoked and she was resentenced to three years in prison andthree years of postrelease supervision on the attempted robbery conviction, and 1 to 4 years inprison on the forgery conviction, to run concurrently. Defendant now appeals, arguing only thatthe resentence is harsh and excessive.
As a initial matter, we note that defendant is not precluded from challenging the severity ofthe resentence by the waiver of appeal that she entered into in connection with the [*2]original plea (see People v Ross, 67 AD3d 1130, 1130 [2009]). Upon reviewingthe record, however, we find no merit to defendant's contention that the resentence is harsh andexcessive. Defendant has demonstrated an inability to comply with the conditions of herprobation, despite repeated opportunities to do so. In addition, she has exhibited violenttendencies given the manner in which she snatched a purse from an elderly woman therebycausing her injury. In view of this, we find no extraordinary circumstances nor any abuse ofdiscretion warranting a reduction of the resentence in the interest of justice (see People v Khan, 82 AD3d 1362[2011]; People v Hunter, 62 AD3d1207, 1208 [2009]; People v Millard, 279 AD2d 807, 808 [2001], lv denied96 NY2d 803 [2001]).
Mercure, J.P., Rose, Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.