Opinion
March 5, 1998
Appeal from the County Court of Cortland County (Smith, J.).
Upon appeal of defendant's conviction of the crimes of rape in the second degree and sexual abuse in the first degree, this Court modified the judgment by vacating the latter conviction and remitting the matter to County Court for resentencing on defendant's conviction of the crime of rape in the second degree ( 235 A.D.2d 834, lv denied 89 N.Y.2d 1038). Defendant was resentenced to a prison term of 2 1/3 to 7 years, a sentence which he now argues constitutes an abuse of County Court's discretion. We disagree.
Although County Court sentenced defendant to the maximum prison term statutorily permissible, which was also the same prison term originally imposed for the crime, our review of the record indicates that the court did so only after independently assessing all relevant factors, including the probation reports, the victim's impact statement, arguments from counsel and institutional reports which were favorable to defendant. Moreover, we find that the sentence was neither harsh nor excessive. The sentence is within the statutory parameters and is fitting in view of the heinous nature of the crime committed against a 12-year-old victim ( see, People v. Deyo, 222 A.D.2d 757; People v. Keller, 200 A.D.2d 843, lv denied 83 N.Y.2d 873).
Crew III, J. P., White, Yesawich Jr., Peters and Carpinello, JJ., concur. Ordered that the judgment is affirmed.