People v Georges

2015 NY Slip Op 06166 [130 AD3d 843]

July 15, 2015

Appellate Division, Second Department

As corrected through Wednesday, September 2, 2015

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The People of the State of New York,Respondent, v John Georges III, Appellant.

Carol Kahn, New York, N.Y., for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea ofcounsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Dutchess County(Greller, J.), rendered September 23, 2013, convicting him of use of a child in a sexualperformance as a sexually motivated felony and possessing a sexual performance by achild, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

During the course of the plea colloquy, the court asked the prosecutor if themaximum allowable sentence was "five to fifteen," and the prosecutor answered in theaffirmative. The court advised the defendant that it would sentence him to a term ofimprisonment of between five and eight years. At sentencing, on the top count of use of achild in a sexual performance as a sexually motivated felony, the court sentenced thedefendant to a term of imprisonment of seven years.

Use of a child in a sexual performance as a sexually motivated felony is a class Cnonviolent felony sex offense (see Penal Law §§ 130.91,263.05), for which a determinate sentence of between 31/2 and 15 years ofimprisonment may be imposed (see Penal Law § 70.80 [4] [a] [ii]).Even assuming, as the defendant contends, that the court misunderstood the extent of itssentencing discretion, the record establishes that no "possible harm" flowed from anysuch erroneous belief, because the court expressed no reservations about the fairness ofthe sentence to be imposed (People v Barzge, 244 AD2d 213, 214 [1997]; see People v Young, 102AD3d 1061 [2013]; cf.People v Charles, 67 AD3d 698, 699 [2009]; People v Rodriguez, 276AD2d 368, 369 [2000]; People v Jimenez, 209 AD2d 719, 720 [1994]). Indeed,knowing that it could impose a sentence of at least five years of imprisonment, the courtstill opted to impose an even greater sentence. Thus, there is no basis to believe, as thedefendant contends, that the court would have imposed a term of five years ofimprisonment had it known that the minimum term was 31/2 years.

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Mastro, J.P., Chambers, Maltese and Duffy, JJ., concur.