| People v Connelly |
| 2017 NY Slip Op 05278 [151 AD3d 1480] |
| June 29, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Sean M.Connelly, Appellant. |
John R. Trice, Elmira, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (David M. Petrush of counsel), forrespondent.
Appeal from a judgment of the County Court of Broome County (Cawley, J.), renderedDecember 24, 2014, which revoked defendant's probation and imposed a sentence ofimprisonment.
Defendant waived indictment and pleaded guilty to attempted criminal sexual abuse in thefirst degree stemming from an incident in which he subjected a social services caseworker tosexual contact by forcible compulsion during a meeting at defendant's residence. He wassentenced to 10 years of probation and ordered to abide by written conditions. Thereafter, he wascharged with violating his probation for refusing to sign a release of his records following ahospitalization as required by condition 12 of his probation. Defendant admitted the violation inexchange for a promise to adjourn sentencing, release him on probation for two to three monthsand, if he complied with the probation conditions, restore his probationary sentence. Defendantwas warned that if he violated the conditions again, a prison sentence could be imposed. A monthlater, he was again charged with violating probation by failing to appear for a probationappointment. The parties then reached an agreement to resolve the admitted and pendingprobation violations, as well as other pending criminal charges, with a two-year prison term to befollowed by 10 years of postrelease supervision. The court thereafter revoked probation andimposed the agreed-upon resentence. Defendant now appeals.
We affirm. Defendant's sole contention on appeal is that the agreed-upon sentence is harshand excessive given his medical history, limited criminal history and the nature of his admittedviolation of probation. We are not persuaded, given that the sentence, which was less than themaximum permissible (see Penal Law § 70.80 [4] [a] [iv]), satisfied otherpending charges [*2]and was warranted due to defendant'sinability to comply with the terms of probation (see People v Decoste, 144 AD3d 1265, 1266 [2016]; People v Guyett, 137 AD3d 1329,1330 [2016]; People v Beach, 126AD3d 1236, 1236 [2015]). To the extent that defendant relies upon the court's failure to holda hearing on the second violation petition, any challenge thereto is unpreserved given his failureto request a hearing and his acceptance of the agreement on the admitted first violation that alsoresolved the second petition (see CPL 470.05 [2]; People v Lopez, 35 AD3d 763, 763 [2006], lv denied 8NY3d 924 [2007]). Under these circumstances, "we do not find the existence of extraordinarycircumstances or any abuse of discretion warranting a reduction of the resentence in the interestof justice" (People v Smurphat, 91AD3d 980, 981 [2012], lv denied 18 NY3d 962 [2012]).
Lynch, J.P., Devine, Clark, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.