| People v Curry |
| 2018 NY Slip Op 00866 [158 AD3d 898] |
| February 8, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Paul Curry, Appellant. |
Paul J. Connolly, Delmar, for appellant.
James R. Farrell, District Attorney, Monticello (Richard K. Caister of counsel), forrespondent.
Egan Jr., J.P. Appeal from a judgment of County Court of Sullivan County (McGuire, J.),rendered February 5, 2015, which resentenced defendant following his conviction of the crime ofrape in the first degree.
When this matter was previously before us, we vacated defendant's sentence and remitted thematter to County Court for resentencing on the basis that the fine and restitution imposed wereimproper because they had not been set forth as part of the plea agreement (123 AD3d 1381,1384 [2014], lv denied 25 NY3d 950 [2015]). In remitting the matter, we instructed thateither defendant be permitted the opportunity to withdraw his plea in the event that an enhancedsentence containing such terms be imposed or, in the alternative, that defendant be resentenced inaccordance with the plea agreement (123 AD3d at 1384). Upon remittal, County Courtresentenced defendant to a prison term of 25 years, followed by 20 years of postreleasesupervision, but no fine or restitution was imposed. Defendant appeals.
Initially, we are unpersuaded by defendant's contention that County Court failed to complywith the dictates of this Court's prior decision remitting the matter for resentencing. Thenegotiated plea agreement provided that County Court would not be bound by its sentencingcommitment and defendant would be subject to a prison term of up to 25 years in the event thathe violated the conditions of the plea agreement. Inasmuch as defendant admitted to violating acondition of the plea agreement by failing to comply with the terms of the order of protection, the[*2]prison term imposed at resentencing comported with theagreed-upon plea terms.
Further, we find no abuse of discretion in County Court denying defense counsel's request atresentencing for a mental health examination of defendant. There is no indication that defendantlacked the capacity to understand the proceedings at the time of the resentencing (see People v Miranda, 67 AD3d709, 711 [2009], lv denied 15 NY3d 922 [2010]), and the record reflects that thecourt possessed all the facts necessary to appropriately resentence defendant (see e.g. People v Ruff, 50 AD3d1167, 1168 [2008]). Finally, defendant's valid waiver of the right to appeal precludes anychallenge to the resentence as harsh and excessive (see People v Volfson, 79 AD3d 1532, 1533 [2010], lvdenied 16 NY3d 900 [2011]).
Devine, Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.