People v Benninger

2019 NY Slip Op 05235 [173 AD3d 1568]

June 27, 2019

Appellate Division, Third Department

As corrected through Wednesday, July 31, 2019

[*1]

The People of the State of New York,Respondent, v Timathy A. Benninger, Appellant.

Michael T. Baker, Public Defender, Binghamton (Andrew Newmark of counsel), forappellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.

Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), enteredOctober 31, 2017, convicting defendant upon his plea of guilty of the crime of failure to registeras a sex offender.

Defendant is a level three sex offender under the Sex Offender Registration Act (seeCorrection Law art 6-c) who was previously convicted of failing to register as a sex offender(see Correction Law § 168-t). In 2017, defendant was indicted for againfailing to register as a sex offender, as a class D felony, based upon his failure to provide achange of address to the relevant authorities (see Correction Law§§ 168-f, 168-t). Defendant thereafter pleaded guilty as charged and, inexchange, County Court agreed to impose a prison sentence of 1 to 3 years. The court releaseddefendant on his own recognizance but warned him that, if he were involved in further criminalconduct, it would not be bound to the agreed-upon sentence and could impose a prison sentenceof up to 21/3 to 7 years, which defendant indicated he understood. Defendant wasthereafter arrested on a burglary charge and pleaded guilty to a reduced misdemeanor. Atsentencing, the court determined that defendant had violated the terms and conditions of hisrelease and imposed an enhanced prison sentence of 2 to 6 years. Defendant appeals.

Defendant's sole contention on appeal is that the sentence imposed was harsh and excessive,in that his guilty plea to a misdemeanor crime committed while awaiting sentencing on thischarge did not warrant that the sentence be doubled. As defendant did not object to the enhancedsentence or move to withdraw his guilty plea, his contention is unpreserved (see People v Lopez, 157 AD3d1163, 1163-1164 [2018]; People vBennett, 143 AD3d 1008, 1009 [2016]).^[FN*] Were we to consider this issue despite the lackof preservation, we would not be persuaded that a reduction of the sentence is warranted (see People v Smith, 162 AD3d1408, 1409 [2018]). Most notably, this is defendant's fourth conviction for failing to registeras a sex offender, reflecting his repeated disregard for his ongoing obligations as a registered sexoffender. In addition, defendant has an extensive history of felony convictions, as well asmultiple parole and probation violations and revocations.

Garry, P.J., Lynch, Clark, Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.

Footnote *:At sentencing, County Courtannounced its intent to impose an enhanced sentence and defendant was afforded an opportunityto address his postplea conduct. Defendant asked for leniency, but did not contest that he hadviolated the conditions of his release, and he did not request a hearing thereon (see People vOutley, 80 NY2d 702 [1993]; People v Smith, 162 AD3d 1408, 1409 [2018]).