| People v Shan |
| 2014 NY Slip Op 02977 [117 AD3d 1098] |
| May 1, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vGrant Shan, Appellant. |
Neal D. Futerfas, White Plains, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Garry, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered April 2, 2012, which resentenced defendant following his conviction uponhis plea of guilty of the crime of assault in the second degree.
Defendant was indicted for assault in the first degree after it was alleged that hestruck his paramour in the back of the head with a blunt object, causing a subduralhematoma and a depressed skull fracture that required surgery. Thereafter, in exchangefor a negotiated sentence, defendant entered an Alford plea to one count ofassault in the second degree in satisfaction of both the instant indictment and a second,unrelated indictment. Defendant was then sentenced to the agreed-upon prison term ofseven years with five years of postrelease supervision, and defendant appealed.Thereafter, upon discovering that the original sentence was not permissible, CountyCourt resentenced defendant, reducing the period of postrelease supervision to threeyears.
Preliminarily, we note that defendant failed to file a notice of appeal from theresentencing. However, despite the notice of appeal being premature with respect thereto,we will exercise our discretion and treat the notice of appeal as valid (see CPL460.10 [6]; People vBrainard, 111 AD3d 1162, 1163 [2013]; People v Therrien, 78 AD3d 1331, 1332 [2010]). Turningto the merits, we reject defendant's contention that the resentence imposed is harsh[*2]and excessive. Although defendant's criminal historyis not lengthy, we note that there was evidence that defendant had a history of domesticviolence, the underlying offense was particularly violent and, while incarcerated for theinstant offense, he assaulted a correction officer, for which he was also facing charges.While defendant received the maximum sentence for the crime for which he pleadedguilty, that is the sentence to which he agreed. Significantly, he faced an aggregate termof up to 32 years in prison if convicted of the crimes alleged in the two indictments thatwere satisfied by this plea. Accordingly, we find no extraordinary circumstances or abuseof discretion warranting a reduction of the sentence in the interest of justice (see People v Mayo, 100 AD3d1155, 1156 [2012]; Peoplev Blume, 92 AD3d 1025, 1028 [2012], lv denied 19 NY3d 957 [2012]).Defendant's remaining arguments have been considered and found to be withoutmerit.
Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.