| People v Murdie |
| 2018 NY Slip Op 00491 [157 AD3d 1166] |
| January 25, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v JohnMurdie, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), forappellant.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), renderedApril 11, 2016, which resentenced defendant following his conviction of the crime of criminalsale of a controlled substance in the third degree (two counts).
The underlying facts are more fully set forth in our prior decision in this matter (134 AD3d1353 [2015]). Briefly, defendant pleaded guilty to an indictment charging him with criminal saleof a controlled substance in this third degree (two counts) with the understanding that he wouldenter a judicial diversion program and faced up to 24 years in prison if he did not complete it.Defendant was charged with violating the terms and conditions of the program, and thenadmitted that he had done so. Defendant did so with the understanding that he would besentenced, as a second felony offender, to an aggregate prison term of seven years to be followedby three years of postrelease supervision.
Upon appeal, defendant argued that his prior felony conviction in New Hampshire was notthe equivalent of a felony in New York and that he should not have been adjudicated as a secondfelony offender. This Court found that defendant's argument on this point was unpreserved andaffirmed the judgment of conviction (id. at 1354). Defendant then successfully moved toset aside his sentence pursuant to CPL 440.20. County Court resentenced him, as a felony drugoffender, to an aggregate prison term of five years followed by two years of postreleasesupervision, to be served under parole supervision pursuant to CPL 410.91 (see PenalLaw § 70.70 [2] [d]). Defendant now appeals.
[*2] Defendant's claim that the resentence imposed is harsh andexcessive is predicated in large measure upon the fact that the original sentence of seven years inprison was one year more than the minimum term allowed for a second felony drug offender inhis position (see Penal Law §§ 70.70 [4] [b] [i]; 220.39 [1]). Hereasons that he should have been resentenced to an aggregate prison term of two years, theminimum allowable term plus one year, and that any period of incarceration in excess of twoyears is harsh and excessive (see Penal Law § 70.70 [2] [a] [i]).
We disagree. After considering the pertinent factors, including defendant's positive programaccomplishments while confined and his criminal history, we cannot say that County Courtabused its discretion in resentencing defendant in the middle of the permissible sentencing rangeor that defendant has presented any extraordinary circumstances that would warrant a reductionof the sentence in the interest of justice (see People v Smith, 135 AD3d 1248, 1248-1249 [2016]; People v Cruz, 131 AD3d 724,728 [2015], lv denied 26 NY3d 1087 [2015]). Accordingly, the judgment of conviction isaffirmed.
Devine, J.P., Clark, Mulvey, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.