| People v Middlemiss |
| 2017 NY Slip Op 03227 [149 AD3d 1421] |
| April 27, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Dillion T.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.), renderedDecember 7, 2015, which revoked defendant's probation and imposed a sentence ofimprisonment.
Defendant waived indictment and was charged in a superior court information with the crimeof criminal sexual act in the second degree after engaging in oral sexual conduct with a femalevictim, who was under the age of 15. In satisfaction thereof, as well as a pending sexualmisconduct charge, he pleaded guilty to this crime and waived his right to appeal. In accordancewith the terms of the plea agreement, he was sentenced to six months in jail and 10 years ofprobation. Defendant violated the conditions of his probation on two occasions thereafter, but hisprobation was continued. After he violated the conditions of his probation a third time, however,his probation was revoked and he
was resentenced on the underlying crime to six years in prison, to be followed by 10 years ofpostrelease supervision. He now appeals.
Defendant's sole contention is that the resentence is harsh and excessive.[FN*] We find his argument to beunpersuasive. The resentence is consistent with the sentencing option chosen by defendant at thetime that he entered an admission to violating his probation the second time. Indeed, defendantelected to have his probation continued for eight months and, in the event of any furtherviolations during this time period, agreed that his probation would be revoked and he [*2]would be resentenced to a maximum of seven years in prison, to befollowed by 10 years of postrelease supervision. Notably, the resentence was slightly less thanthe option to which defendant agreed. In addition, the record discloses that defendant exhibited ablatant disregard for the conditions of his probation and did not express remorse for his actions.In view of the foregoing, we find no extraordinary circumstances or any abuse of discretionwarranting a reduction of the resentence in the interest of justice (see People v Foulkes, 117 AD3d1176, 1177-1178 [2014], lv denied 24 NY3d 1084 [2014]; see also People v Green, 108 AD3d782, 787 [2013], lv denied 21 NY3d 1074 [2013]).
Peters, P.J., Garry, Egan Jr., Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant is not precluded byhis original waiver of the right to appeal from challenging the resentence (see People v Vallance, 137 AD3d1327, 1327-1328 [2016]).