Opinion
2014-11-13
The PEOPLE of the State of New York, Respondent, v. Billy D. GANOE Jr., Appellant.
Gail B. Rubenfeld, Monticello, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Gail B. Rubenfeld, Monticello, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY, ROSE and LYNCH, JJ.
ROSE, J.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered March 16, 2012, which resentenced defendant following his conviction upon his plea of guilty of the crime of burglary in the second degree (two counts).
Defendant was arrested following a string of burglaries and was charged with various crimes in a 31–count indictment. In full satisfaction of that indictment, defendant pleaded guilty to two counts of burglary in the second degree in exchange for a negotiated sentence of 10 years in prison followed by five years of postrelease supervision on each count, to be served concurrently to each other but consecutively to any sentence imposed as the result of other pending charges. Thereafter, defendant was sentenced as a second felony offender to the negotiated prison term, but without the term of postrelease supervision, and ordered to pay $19,721 in restitution. Defendant appealed. Thereafter, upon discovering that it had been remiss in failing to impose postrelease supervision, County Court resentenced defendant to concurrent prison sentences of 10 years followed by five years of postrelease supervision.
Initially, we will exercise our discretion and treat the premature notice of appeal as valid ( seeCPL 460.10[6]; People v. Shan, 117 A.D.3d 1098, 1098, 985 N.Y.S.2d 187 [2014], lv. denied23 N.Y.3d 1042, 993 N.Y.S.2d 256, 17 N.E.3d 511 [2014] ). Turning to the merits, defendant's contention that County Court should have recused itself because of certain comments made during sentencing is raised for the first time on appeal and is, therefore, unpreserved for appellate review ( see People v. Casey, 61 A.D.3d 1011, 1014, 876 N.Y.S.2d 532 [2009], lv. denied12 N.Y.3d 913, 884 N.Y.S.2d 694, 912 N.E.2d 1075 [2009] ). In any event, the comments, although injudicious, were made in response to defendant's perceived lack of remorse, long criminal record and his argumentative behavior during the proceedings. There is no indication in the record, however, that County Court was impermissibly biased against defendant ( see People v. Glynn, 21 N.Y.3d 614, 618–619, 977 N.Y.S.2d 692, 999 N.E.2d 1137 [2013]; People v. Walker, 100 A.D.3d 1522, 1523, 953 N.Y.S.2d 917 [2012], lv. denied20 N.Y.3d 1104, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013]; People v. Casey, 61 A.D.3d at 1014, 876 N.Y.S.2d 532). In fact, during the resentencing of defendant, the court agreed that the resentence would be retroactive in order to avoid the possibility that it could be imposed consecutively to a concurrent prison sentence that defendant had received in the interim, “out of fairness” to defendant.
We also reject defendant's contention that his sentence was harsh and excessive. Defendant has a lengthy criminal record spanning almost 20 years involving multiple felonies. Nonetheless, he was permitted to plead guilty to just two counts of a 31–count indictment and he bargained for sentences that were shorter than the maximum allowed and imposed concurrently, rather than consecutively. No extraordinary circumstances exist and we find no abuse of discretion that would warrant a reduction of defendant's sentence in the interest of justice ( see People v. Patterson, 119 A.D.3d 1157, 1158–1159, 990 N.Y.S.2d 319 [2014]; People v. Kerwin, 117 A.D.3d 1097, 1098, 985 N.Y.S.2d 186 [2014] ).
ORDERED that the judgment is affirmed. PETERS, P.J., LAHTINEN, GARRY and LYNCH, JJ., concur.