| People v Brodus |
| 2017 NY Slip Op 05274 [151 AD3d 1469] |
| June 29, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Willie J.Brodus, Appellant. |
Allen E. Stone Jr., Vestal, for appellant, and appellant pro se.
Palmer Pellela, Special Prosecutor, Binghamton, for respondent.
Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered April23, 2014, convicting defendant upon his plea of guilty of the crime of burglary in the seconddegree (four counts).
Defendant waived indictment and pleaded guilty to four counts of burglary in the seconddegree as charged in a superior court information stemming from home invasions committed onseparate dates. The plea agreement satisfied other pending burglary charges and other unchargedcrimes. County Court thereafter sentenced defendant as a second violent felony offender to theagreed-upon concurrent prison terms of 10 years with five years of postrelease supervision oneach count, and ordered defendant to pay restitution. Defendant appeals.
Defendant argues that the sentence is harsh and excessive in that County Court failed toconsider the appropriate sentencing factors and should have imposed the minimum availableprison sentence of seven years. We disagree. The record reflects that the court imposed thepromised sentence after reviewing the presentence report and considering appropriate sentencingfactors, including defendant's criminal history, college education, prior conduct in abscondingfrom probation supervision and the other charges that this plea agreement satisfied (seePeople v Farrar, 52 NY2d 302, 305-306 [1981]; People v Brown, 123 AD3d 1298, 1299 [2014], lv denied25 NY3d 1199 [2015]). The negotiated sentence avoided potential consecutive sentences of up to15 years on each of the burglary convictions (see Penal Law §§ 70.02[1] [b]; 70.04 [3] [b]; 70.25 [2]). Upon review, we discern no extraordinary circumstances orabuse of discretion and therefore decline to reduce the sentence in the interest of justice(see CPL 470.15 [4] [c]; [6] [b]).
With regard to the contentions raised in defendant's pro se supplemental brief, County [*2]Court did not abuse its discretion in refusing to strike the evaluativeremarks in the presentence report (see CPL 390.30 [1], [3] [a]; 9 NYCRR 350.7 [b] [4]).The court recognized that the remarks reflected the author's opinion (see 9 NYCRR350.5) and afforded defense counsel an opportunity to contest them, and it was for the court todetermine what bearing, if any, it should have on the sentence to be imposed (see People v Paragallo, 82 AD3d1508, 1509 [2011]; see also People v Hansen, 99 NY2d 339, 345-346 [2003]).Defendant's claim that the trial judge was biased against him because he had presided over priorcases against him was not preserved for our review and, in any event, lacks any record support(see Judiciary Law § 14; People v Mabry, 27 AD3d 835, 836 [2006]). Defendant's challengeto the DNA database fee, crime victim assistance fee and mandatary surcharge are unavailing, asthey were mandatory upon his conviction of a felony, in the absence of proof that he paid therestitution ordered (see Penal Law § 60.35 [1] [a]; [6]; People v Ortolaza, 120 AD3d 843,844 [2014], lv denied 25 NY3d 991 [2015]).[FN*]
McCarthy, J.P., Lynch, Rose, Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:To the extent that defendant ischallenging the restitution order, he agreed to pay restitution as part of the plea agreement anddid not request a hearing or object to the amount awarded and, therefore, this claim isunpreserved (see People v Mahon,148 AD3d 1303, 1303 [2017]).