| People v Sparks |
| 2013 NY Slip Op 02286 [105 AD3d 1073] |
| April 4, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RalphSparks, Also Known as Luis Concepcion, Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Lahtinen, J. Appeals (1) by permission, from an order of the County Court ofSullivan County (LaBuda, J.), entered March 18, 2011, which denied defendant's motionpursuant to CPL 440.20 to set aside the sentence following his conviction after a nonjurytrial of the crimes of burglary in the second degree (three counts), petit larceny (threecounts), grand larceny in the fourth degree, criminal possession of a weapon in the thirddegree, criminal possession of stolen property in the fourth degree and criminalpossession of stolen property in the fifth degree, without a hearing, and (2) from ajudgment of said court, rendered June 28, 2012, which resentenced defendant followingsaid conviction.
In December 2002, defendant unlawfully entered three residences in Sullivan Countyand stole various items ranging from jewelry and cash to a loaded pistol. He was chargedin a 10-count indictment and, after a nonjury trial, found guilty of all counts. CountyCourt sentenced him, as a second violent felony offender, to an aggregate prison term of25 years plus postrelease supervision, and we affirmed (13 AD3d 813 [2004], lvdenied 4 NY3d 836 [2005]). Defendant later moved pursuant to CPL 440.20 to setaside his sentence upon the ground that the New Jersey conviction used to elevate him toa second violent felony offender was not the equivalent of a New York felony. CountyCourt denied the motion in March 2011 and defendant [*2]appeals from that order by permission.
While the appeal was pending, the People acknowledged that defendant had beenincorrectly sentenced as a second violent felony offender and, therefore, he wasresentenced in June 2012 by County Court without enhancement for prior convictions.The prison terms were shortened for some counts, but County Court sentenced defendantto 15 years in prison on count 1 (burglary in the second degree) and a consecutive prisonterm of 10 years on count 3 (burglary in the second degree committed in a differentresidence), for an aggregate prison term of 25 years plus postrelease supervision.Defendant also appeals from this judgment.
The appeal from the March 2011 order denying defendant's CPL 440.20 motion ismoot. After that motion was denied, the People acknowledged the merit of thesentencing error asserted by defendant regarding his status as a second violent felonyoffender and he has since been resentenced by County Court (see People v Clayton, 38AD3d 1131, 1131-1132 [2007], lv denied 9 NY3d 841 [2007]; see also Matter of Avent vFischer, 70 AD3d 1145, 1146 [2010]).
Defendant argues that the prison term imposed at resentencing must be reducedpursuant to Penal Law § 70.30 (1) (e) (i) to an aggregate of 20 years. Theaggregate maximum sentence is deemed to be in accordance with the pertinent statutorysentencing provisions (see People v Moore, 61 NY2d 575, 578 [1984]; People v Haque, 70 AD3d967, 968 [2010], lv denied 15 NY3d 750 [2010], cert denied 562 US—, 131 S Ct 903 [2011]; People v Brown, 62 AD3d 1089, 1093 [2009], lvdenied 13 NY3d 742 [2009]; People v Ogborn, 55 AD3d 1054, 1056 [2008], lvdenied 12 NY3d 761 [2009]), and the public website of the Department ofCorrections and Community Supervision (http://www.doccs.ny.gov) reflects thatdefendant's sentence has, in fact, been adjusted accordingly.
We find unpersuasive defendant's contention that his sentence was harsh andexcessive. He had an extensive criminal record, faced potentially three consecutivesentences for the three burglaries, the sentence imposed was within the range the Peoplehad indicated that they would recommend at the time of the nonjury trial, and defendantshowed no remorse for his crimes. County Court did not abuse its discretion and there areno extraordinary circumstances meriting a reduction of the sentence (see People v Merchant, 79AD3d 1526, 1526-1527 [2010]; People v Brown, 62 AD3d at 1093;People v Battistini, 306 AD2d 636, 639 [2003], lv denied 1 NY3d 568[2003]). Defendant's remaining arguments are unavailing.
Peters, P.J., Stein and Spain, JJ., concur. Ordered that the appeal from the orderentered March 18, 2011 is dismissed, as moot. Ordered that the judgment rendered June28, 2012 is affirmed.