Opinion
492 KA 20-00390
06-11-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MICHAEL GAINEY, DEFENDANT-APPELLANT.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (ERICH D. GROME OF COUNSEL), FOR RESPONDENT.
PRESENT:
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (ERICH D. GROME OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), rendered September 10, 2019. The judgment convicted defendant upon a plea of guilty of attempted criminal possession of a weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]). Contrary to defendant's contention, County Court did not err in declining to grant him a "violent felony override." In fact, the court had no authority to do so (see People v Jackson, 136 AD3d 1056, 1057 [2d Dept 2016], lv denied 27 NY3d 1070 [2016]; People v Burnice, 129 AD3d 1498, 1499 [4th Dept 2015], lv denied 27 NY3d 993 [2016]; People v Lynch, 121 AD3d 717, 718-719 [2d Dept 2014], lv denied 24 NY3d 1086 [2014]). Moreover, to the extent that defendant sought a "court-generated document" to establish that his crime "did not involve: being armed with, the use of or threatened use of, or the possession with the intent to use unlawfully against another of, a deadly weapon or dangerous instrument or the infliction of a serious physical injury" (7 NYCRR 1900.4 [c] [1] [iv]), we note that the prosecutor recited those facts during the sentencing proceeding, and that the court was obligated to send "a certified copy of the stenographic minutes of the sentencing proceeding . . . to the person in charge of the institution to which . . . defendant [was] delivered within thirty days from the date such sentence was imposed" (CPL 380.70; see generally 7 NYCRR 1900.2, 1900.4).
In light of defendant's prior criminal history, which includes numerous convictions and several violations of probation spanning more than a decade, we conclude that the agreed-upon sentence is neither unduly harsh nor severe.
Entered: June 11, 2021
Mark W. Bennett
Clerk of the Court