| People v Warner |
| 2013 NY Slip Op 07072 [110 AD3d 1339] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v CarlL. Warner, Appellant. |
—[*1] William G. Gabor, District Attorney, Wampsville (Elizabeth S. Healy of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Madison County(DiStefano, J.), rendered March 24, 2010, which resentenced defendant following hisconviction of the crimes of rape in the first degree (two counts), sexual abuse in the firstdegree and endangering the welfare of a child (two counts).
The facts are set forth in our earlier decision in which we found that defendant'sconvictions were not against the weight of the evidence, but remitted for resentencingbecause County Court had failed to include postrelease supervision (69 AD3d 1052,1053-1054 [2010], lv denied 14 NY3d 894 [2010]). Upon resentencing, CountyCourt imposed the same terms of incarceration, an aggregate of 47 years, together withfive years of postrelease supervision.[FN*] [*2]Defendant appeals.
Defendant argues that his sentence is harsh and excessive. Initially, we note thatcontrolling case law decided after our earlier decision and defendant's resentencing hasmade clear that resentencing as occurred here is limited to making the requiredpronouncement of postrelease supervision (see People v Lingle, 16 NY3d 621, 635 [2011]), and ourreview on appeal from resentencing is "limited to the correction of errors or the abuse ofdiscretion at the resentencing" (People v Lakatosz, 89 AD3d 1329, 1330 [2011], lvdenied 18 NY3d 925 [2012] [internal quotation marks and citation omitted]).However, at resentencing, County Court imposed both postrelease supervision andperiods of incarceration (albeit the same incarceration as at the original sentencing).Moreover, defendant had asserted on his earlier appeal that his sentence was harsh andexcessive and we did not address the issue at that time since we were remitting forresentencing (69 AD3d at 1054). We will thus address the merits of that argument in thisappeal.
While we have broad authority to modify a sentence (see People v Delgado,80 NY2d 780, 783 [1992]), a legal sentence generally will not be disturbed absentextraordinary circumstances or an abuse of discretion (see e.g. People v Kendall, 91AD3d 1191, 1193 [2012]; People v Sawinski, 294 AD2d 667, 669 [2002],lv denied 98 NY2d 701 [2002]). Here, defendant's sentence included, amongother things, two consecutive 20-year prison terms on the first degree rape convictions.This was less than the maximum permissible sentence for that crime (see PenalLaw § 70.02 [3] [a]). His conduct involved repeatedly subjecting two young girlsto sexual acts and having sexual intercourse with an eight-year-old child (69 AD3d at1053-1054). Although he contends that he did not perpetrate the acts constituting thecriminal conduct and urges that the evidence against him was weak, a jury foundotherwise regarding his conduct, and we have already determined that the weight of theevidence supported the jury's determination (id.). The factors articulated andweighed by County Court at resentencing were appropriate and within its discretion(see People v Farrar, 52 NY2d 302, 305-306 [1981]). Finding neitherextraordinary circumstances nor an abuse of discretion, we are unpersuaded thatdefendant's sentence should be modified (see People v Wallis, 24 AD3d 1029, 1033 [2005], lvdenied 6 NY3d 854 [2006]; People v Dworakowski, 208 AD2d 1129, 1130[1994], lv denied 84 NY2d 1031 [1995]).
Defendant's remaining arguments are not properly before us on this appeal fromresentencing in that those arguments were either raised or could have been raised uponhis earlier appeal from the original judgment (see e.g. People v Gantt, 77 AD3d 988, 989 [2010]).
Rose, J.P., Spain and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Although it appears thatCounty Court failed to articulate separate postrelease supervision for each of thepertinent convictions, defendant has not raised this issue and, in any event, five years wasthe maximum available postrelease supervision on the top count and any other periodswould merge by operation of law (see Penal Law § 70.45 [5] [c]; People v Perkins, 107 AD3d1157, 1158 n [2013], lv denied 21 NY3d 1076 [2013]; People v Hayes, 104 AD3d1050, 1055 [2013]).