| People v Kemp |
| 2013 NY Slip Op 08770 [112 AD3d 1376] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v James P. Kemp, Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of counsel), forrespondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.),rendered September 4, 2012. The judgment convicted defendant, upon his plea of guilty,of attempted rape in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted rape in the second degree (Penal Law §§ 110.00, 130.30 [1]),defendant contends that the sentence imposed, a determinate term of incarceration of twoyears plus five years' postrelease supervision, is unduly harsh and severe. We agree withdefendant that his waiver of the right to appeal does not preclude him from challengingthe severity of his sentence, inasmuch as "the record establishes that defendant waivedhis right to appeal before County Court advised him of the potential periods ofimprisonment that could be imposed" (People v Mingo, 38 AD3d 1270, 1271 [2007]; see People v Adams, 94 AD3d1428, 1429 [2012], lv denied 19 NY3d 970 [2012]). Nevertheless, weperceive no basis to exercise our power to modify his sentence as a matter of discretionin the interest of justice (see CPL 470.15 [6]).
Although defendant was only 19 years old when he was sentenced, he already had acriminal record, along with a youthful offender adjudication and extensive contact withthe criminal justice system as a juvenile. We also note that defendant was previouslysentenced to probation in connection with the youthful offender adjudication but failed tocomply with its terms and conditions, thus resulting in his being resentenced toincarceration. Finally, we note that the certificate of conviction incorrectly reflects thatdefendant was sentenced to a two-year period of postrelease supervision and thereforemust be amended to correct that error (see People v Saxton, 32 AD3d 1286, 1286-1287 [2006]).Present—Smith, J.P., Fahey, Lindley, Sconiers and Whalen, JJ.