| People v Gilmore |
| 2019 NY Slip Op 07954 [177 AD3d 1029] |
| November 7, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Furman J. Gilmore, Also Known as Junior Gilmore,Appellant. |
David E. Woodin, Catskill, for appellant, and appellant pro se.
Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Greene County (Tailleur,J.), rendered November 22, 2016, convicting defendant upon his plea of guilty of thecrimes of criminal sale of a controlled substance in the third degree (three counts),criminal possession of a controlled substance in the third degree (four counts), criminalpossession of a controlled substance in the fourth degree and criminal possession of acontrolled substance in the seventh degree.
Defendant initially was charged in two separate indictments with variousdrug-related crimes. Following the People's successful motion to consolidate, defendantwas charged in a nine-count amended indictment with the crimes of criminal sale of acontrolled substance in the third degree (three counts), criminal possession of acontrolled substance in the third degree (four counts), criminal possession of a controlledsubstance in the fourth degree and criminal possession of a controlled substance in theseventh degree. Defendant agreed to plead guilty to the entire indictment with theunderstanding that he would be sentenced as a second felony drug offender to concurrentprison terms of seven years (followed by three years of postrelease supervision) upon hisfelony drug convictions and to a lesser period of incarceration upon his misdemeanordrug conviction. Thereafter, defendant pleaded guilty to the amended indictment ascontemplated, and County Court imposed the agreed-upon sentence. This appealensued.
Defendant's primary claim—that the sentence imposed was harsh andexcessive and failed to adequately take into account his longstanding drugaddiction—is unpersuasive. "A sentence that falls within the permissible statutoryrange will not be disturbed unless it can be shown that the sentencing court abused itsdiscretion or extraordinary circumstances exist warranting a modification" (People v Sindoni, 175 AD3d750, 750-751 [2019] [internal quotation marks and citations omitted]). Theconcurrent and agreed-upon terms of imprisonment imposed upon defendant's class Band class C felony convictions were within the permissible sentencing range for a secondfelony drug offender (see Penal Law § 70.70 [3] [b] [i], [ii]),and—contrary to defendant's assertion—the record reflects that CountyCourt considered the relevant sentencing factors, including defendant's addiction andlengthy criminal history (seePeople v Rock, 151 AD3d 1383, 1384 [2017], lv denied 30 NY3d 953[2017]; People v Gethers,151 AD3d 1398, 1402 [2017], lv denied 30 NY3d 980 [2017]; People v Gillespie, 125 AD3d1017, 1018 [2015]). Under these circumstances, we discern no basis upon which todisturb the sentence imposed.
Defendant's pro se claim that the People failed to disclose certain allegedBrady material—specifically, the video and audio tapes of the underlyingdrug transactions—is belied by the record. In response to defendant's demand toproduce, the People indicated that "[p]hotographs, video tapes and/or recordings [were]available for discovery and inspection," as were "[v]ideo tapes of the drugs sales," andprovided the relevant contact information to facilitate viewing thereof. To that end, thePeople assert, and a letter from assigned appellate counsel confirms, that the videorecordings to which defendant refers were reviewed by plea counsel. As the Peopledisclosed and made available the very evidence that defendant now claims wasimpermissibly withheld, defendant's Brady argument must fail, and his relatedchallenge to the voluntariness of his plea is unpreserved for our review (see People v Taylor, 144 AD3d1317, 1319 [2016], lv denied 28 NY3d 1151 [2017]). Defendant's remainingarguments have been examined and found to be lacking in merit.
Egan Jr., J.P., Clark and Devine, JJ., concur. Ordered that the judgment isaffirmed.