| People v Ganoe |
| 2014 NY Slip Op 07697 [122 AD3d 1003] |
| November 13, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vBilly D. Ganoe Jr., Appellant. |
Gail B. Rubenfeld, Monticello, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Rose, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered March 16, 2012, which resentenced defendant following his convictionupon his plea of guilty of the crime of burglary in the second degree (two counts).
Defendant was arrested following a string of burglaries and was charged withvarious crimes in a 31-count indictment. In full satisfaction of that indictment, defendantpleaded guilty to two counts of burglary in the second degree in exchange for anegotiated sentence of 10 years in prison followed by five years of postreleasesupervision on each count, to be served concurrently to each other but consecutively toany sentence imposed as the result of other pending charges. Thereafter, defendant wassentenced as a second felony offender to the negotiated prison term, but without the termof postrelease supervision, and ordered to pay $19,721 in restitution. Defendantappealed. Thereafter, upon discovering that it had been remiss in failing to imposepostrelease supervision, County Court resentenced defendant to concurrent prisonsentences of 10 years followed by five years of postrelease supervision.
Initially, we will exercise our discretion and treat the premature notice of appeal asvalid (see CPL 460.10 [6]; People v Shan, 117 AD3d 1098, 1098 [2014], lvdenied 23 NY3d 1042 [2014]). Turning to the merits, defendant's contention thatCounty Court should have recused itself because of certain comments made duringsentencing is raised for the first time on appeal [*2]and is,therefore, unpreserved for appellate review (see People v Casey, 61 AD3d 1011, 1014 [2009], lvdenied 12 NY3d 913 [2009]). In any event, the comments, although injudicious,were made in response to defendant's perceived lack of remorse, long criminal recordand his argumentative behavior during the proceedings. There is no indication in therecord, however, that County Court was impermissibly biased against defendant (see People v Glynn, 21 NY3d614, 618-619 [2013]; People v Walker, 100 AD3d 1522, 1523 [2012], lvdenied 20 NY3d 1104 [2013]; People v Casey, 61 AD3d at 1014). In fact,during the resentencing of defendant, the court agreed that the resentence would beretroactive in order to avoid the possibility that it could be imposed consecutively to aconcurrent prison sentence that defendant had received in the interim, "out of fairness" todefendant.
We also reject defendant's contention that his sentence was harsh and excessive.Defendant has a lengthy criminal record spanning almost 20 years involving multiplefelonies. Nonetheless, he was permitted to plead guilty to just two counts of a 31-countindictment and he bargained for sentences that were shorter than the maximum allowedand imposed concurrently, rather than consecutively. No extraordinary circumstancesexist and we find no abuse of discretion that would warrant a reduction of defendant'ssentence in the interest of justice (see People v Patterson, 119 AD3d 1157, 1158-1159[2014]; People v Kerwin,117 AD3d 1097, 1098 [2014]).
Peters, P.J., Lahtinen, Garry and Lynch, JJ., concur. Ordered that the judgment isaffirmed.