| People v Battease |
| 2012 NY Slip Op 01522 [93 AD3d 888] |
| March 1, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Phillip P.Battease, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Andrew J. Proler of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered July 21, 2010, which resentenced defendant following his convictionof the crimes of criminal sale of a controlled substance in the fifth degree, coercion in the firstdegree and incest in the third degree.
The facts are set forth in our decision in defendant's prior appeal (74 AD3d 1571 [2010],lv denied 15 NY3d 849 [2010]). In that appeal, we reversed defendant's conviction ontwo of the five counts of which he had been convicted, vacated the sentence, and remitted forresentencing on the remaining three counts (id. at 1577-1578). Upon remittal, CountyCourt sentenced defendant, as a persistent felony offender, to three concurrent terms of 20 yearsto life in prison. Defendant appeals.
Defendant contends that the persistent felony offender statute (see Penal Law §70.10) violates his right to equal protection because other statutory sentencing enhancements forrecidivists do not permit consideration of convictions occurring more than 10 years earlier. Weare unpersuaded. As we observed in a case rejecting an equal protection argument regarding thepersistent felony and persistent violent felony offender sentencing statutes, "[i]t is well settled. . . that [t]he Legislature may distinguish among the ills of society which require acriminal sanction, and prescribe, as it reasonably views them, [appropriate sanctions]"(People v Turner, 234 AD2d [*2]704, 707 [1996][internal quotation marks and citation omitted]; see People v Beckwith, 309 AD2d 1253,1254 [2003]). To the extent that defendant continues to challenge his sentence underApprendi (see Apprendi v New Jersey, 530 US 466 [2000]), we addressed thatissue in his earlier appeal. In any event, since such time the Second Circuit, sitting en banc,vacated a decision that had found New York's persistent felony offender statute to beconstitutionally defective under Apprendi and its progeny (see Portalatin vGraham, 624 F3d 69 [2nd Cir 2010], cert denied 562 US —, 131 S Ct 1693[2011]).
The People sustained their burden of proving defendant's prior felony convictions uponwhich his status as a persistent felony offender was predicated. At defendant's originalsentencing, County Court determined, following a hearing, that defendant was a persistent felonyoffender, and that determination was not altered on appeal. The record contains defendant'scertificates of conviction, and he is identified by, among other things, name, date of birth, SocialSecurity number, and NYSID number (see People v Shaw, 83 AD3d 1101, 1102-1103 [2011], lvdenied 17 NY3d 801 [2011]; People v Richards, 266 AD2d 714, 715-716 [1999],lv denied 94 NY2d 924 [2000]).
We are unpersuaded by defendant's argument that his sentence was harsh and excessive. Inlight of the nature of defendant's crimes and his extensive criminal history, County Court did notabuse its discretion, and we find no extraordinary circumstances warranting a reduction of thesentence (see People v Portee, 56AD3d 947, 950 [2008], lv denied 12 NY3d 820 [2009]; People v Murray,267 AD2d 492, 495 [1999], lv denied 94 NY2d 923 [2000]). Nor do we find an abuse ofdiscretion in the court's assessment of a $3,000 fine (see People v Shultis, 61 AD3d 1116, 1118 [2009], lvdenied 12 NY3d 929 [2009]; People v Oliver, 276 AD2d 930, 931 [2000]).
Defendant contends in a pro se brief that various errors occurred at trial. Those arguments"should have been raised on the appeal from the original judgment of conviction and may not beraised on appeal from resentencing" (People v Gantt, 77 AD3d 988, 989 [2010]). The remainingarguments have been considered and are unavailing.
Peters, J.P., Rose, Kavanagh and Garry, JJ., concur. Ordered that the judgment is affirmed.