PEOPLE v. MEAD (2008)

Appeal from a judgment of the County Court of Washington County (Berke, J.), rendered March 21, 2006, convicting defendant upon his plea of guilty of the crime of criminal sexual act in the third degree.

In satisfaction of a three-count indictment, as well as several unrelated pending charges, defendant pleaded guilty to criminal sexual act in the third degree.   County Court thereafter sentenced defendant in accordance with the plea agreement as a second felony offender to 1 1/212 to 3 years in prison.   Defendant now appeals, solely challenging the sentence imposed.

 Initially, we reject defendant's contention that the prison sentence imposed was harsh and excessive.   Given the seriousness of the crime to which defendant pleaded guilty, along with his extensive criminal history, we cannot conclude that County Court abused its discretion, nor does the record reveal any extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v. Smith, 43 A.D.3d 493, 493, 840 N.Y.S.2d 236 [2007] ).   We similarly find no merit to defendant's assertion that his sentence constituted cruel and unusual punishment (see People v. Mitchell, 289 A.D.2d 776, 779, 734 N.Y.S.2d 353 [2001], lv. denied 98 N.Y.2d 653, 745 N.Y.S.2d 512, 772 N.E.2d 615 [2002];  see also People v. Gilliam, 36 A.D.3d 1151, 1153, 827 N.Y.S.2d 368 [2007], lv. denied 8 N.Y.3d 946, 836 N.Y.S.2d 556, 868 N.E.2d 239 [2007] ).   Lastly, to the extent that defendant claims that he was not afforded credit for time served, such a challenge is properly advanced in a CPLR article 78 proceeding (see People v. Bretti, 179 A.D.2d 996, 997-998, 579 N.Y.S.2d 270 [1992], lv. denied 79 N.Y.2d 998, 584 N.Y.S.2d 452, 594 N.E.2d 946 [1992];  People v. Majercik, 104 A.D.2d 707, 480 N.Y.S.2d 778 [1984] ).

ORDERED that the judgment is affirmed.