| People v Brown |
| 2014 NY Slip Op 08876 [123 AD3d 1298] |
| December 18, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vThomas F. Brown, Appellant. |
Laura Marie Conley, Delmar, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Broome County(Smith, J.), rendered December 10, 2012, which resentenced defendant following hisconviction of the crime of attempted assault in the first degree.
Defendant was convicted, following a jury trial, of assault in the first degree andcriminal possession of a weapon in the third degree, and sentenced as a second felonyoffender to concurrent prison terms, respectively, of 10 years with five years ofpostrelease supervision (hereinafter PRS) and 3 to 6 years. The charges stem fromdefendant's conduct in slashing an acquaintance of his girlfriend with a utility knife. ThisCourt thereafter reduced the assault conviction to attempted assault in the first degree andremitted for resentencing on said count (100 AD3d 1035 [2012], lv denied 20NY3d 1009 [2013]). County Court then resentenced defendant to a prison term of nineyears with five years of PRS, to be served concurrently to the weapon possessionsentence. Defendant now appeals.
Initially, we are unpersuaded by defendant's contention that County Court actedinconsistently with this Court's remittal order by regarding the victim's injuries as lifethreatening serious physical injuries. As the sentencing court recognized, this Courtreduced the assault in the first degree conviction to attempted assault in the first degreebased upon our finding that the victim had not sustained serious physical injury; wereduced that count to an attempt based upon our conclusion that the proof hadestablished that defendant acted with intent to cause serious [*2]physical injury and had inflicted physical injury (100 AD3dat 1035-1036). In its resentence, the court properly took into consideration defendant'sintent, albeit unsuccessful, to cause serious injury when he inflicted a 12-inch cut,two to three inches deep, across the victim's abdomen (id. at 1036), as well as thefact that it was merely fortuitous that defendant did not cause such injury, includingdeath (see Penal Law § 10.00 [10]). Thus, the court did not actunder the misapprehension that the victim had sustained serious physical injury, and thesentence was not "unauthorized" or "invalid as a matter of law" (CPL 470.15 [4] [c]).Further, we find no support in the record that the court acted vindictively in imposing thereduced resentence, or that defendant was penalized for exercising his right toappeal (see People v Grice,98 AD3d 755, 755 [2012], lv denied 20 NY3d 932 [2012]; People v Coon, 45 AD3d897, 898 [2007], lv denied 10 NY3d 763 [2008]; see also People vYoung, 94 NY2d 171, 176-177 [1999]).
We also reject defendant's contention that the resentence, imposed concurrently tohis weapon possession sentence, was harsh and excessive. The resentence was basedupon appropriate sentencing factors, including defendant's extensive criminal history andthe violent and intentional nature of his conduct against the unarmed victim, as well ashis good conduct while confined (see People v Helms, 119 AD3d 1153, 1155-1156 [2014];People v Coon, 45 AD3d at 898). His claim that the presentence report containsinaccuracies is unpreserved (seePeople v Ruff, 50 AD3d 1167, 1168 [2008]; People v Harrington, 3 AD3d 737, 739 [2004], lvdenied 4 NY3d 887 [2005]). As we discern no extraordinary circumstances or abuseof discretion, we decline to reduce the sentence in the interest of justice (see CPL470.15 [4] [c]; [6] [b]; People vDaniels, 24 AD3d 970, 972 [2005], lv denied 6 NY3d 811 [2006]).Defendant's remaining claims are also devoid of merit.
Garry, Rose and Devine, JJ., concur. Ordered that the judgment is affirmed.