People v Middlemiss

2017 NY Slip Op 03225 [149 AD3d 1419]

April 27, 2017

Appellate Division, Third Department

As corrected through Wednesday, May 31, 2017

[*1]

The People of the State of New York, Respondent, v George F.Middlemiss, Appellant.

Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), forappellant.

Mary E. Rain, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), renderedSeptember 9, 2015, which revoked defendant's probation and imposed a sentence ofimprisonment.

Defendant pleaded guilty to two counts of criminal contempt in the first degree and waivedhis right to appeal. Notwithstanding various violations of his release pending sentencing,defendant was sentenced, in accordance with the terms of the plea agreement, to six months injail and five years of probation. Thereafter, defendant was charged with and admitted violatingthe terms of his probation, including by using illicit drugs. Ultimately, County Court revokeddefendant's probation and resentenced him to an aggregate prison term of 21/3 to 7years. Defendant now appeals.

Initially, as defendant correctly asserts, his current challenge to the severity of the sentenceimposed upon the revocation of his probation is not precluded by his waiver of appeal entered inconnection with his original guilty plea and sentence (see People v Vallance, 137 AD3d 1327, 1327-1328 [2016]).Nonetheless, despite numerous opportunities, defendant displayed an inability to comply with theterms and conditions of probation. Further, upon our review of the record, including defendant'slengthy history of domestic violence, we discern no abuse of discretion nor extraordinarycircumstances warranting a reduction of the sentence imposed (see People v Lawing, 110 AD3d1354, 1356 [2013], lv denied 22 NY3d 1200 [2014]).

McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.