PEOPLE v. BARRETT (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Washington County (Kelly S. McKeighan, J.), rendered September 11, 2020, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

While incarcerated in a state correctional facility, defendant was indicted and charged with one count of promoting prison contraband in the first degree.  Defendant thereafter pleaded guilty to attempted promoting prison contraband in the first degree with the understanding that he would be sentenced, as a second felony offender, to a prison term of 11/212 to 3 years.  County Court imposed the agreed-upon term of imprisonment, which ran consecutively to the prison term defendant then was serving, and this appeal ensued.

The sole argument raised by defendant upon appeal, that the agreed-upon term of imprisonment is unduly harsh or severe (see CPL 470.15[6][b]), lacks merit.  As defendant acknowledges, County Court sentenced defendant to the minimum permissible term of imprisonment that may be imposed for a second felony offender convicted of a class E felony (see Penal Law §§ 70.06[3][e];  [4][b];  110.00;  205.25[2]), and “[t]his [C]ourt's statutory discretion to modify sentences does not permit the reduction of a sentence below the minimum required by law” (People v. Hooks, 96 A.D.2d 1001, 1003, 467 N.Y.S.2d 8 [3d Dept. 1983] [internal citation omitted];  see People v. Clark, 176 A.D.2d 1206, 1206–1207, 576 N.Y.S.2d 704 [4th Dept. 1991], lv denied 79 N.Y.2d 854, 580 N.Y.S.2d 726, 588 N.E.2d 761 [1992]).  Contrary to defendant's contention, and as a review of Penal Law § 70.25(2–a) makes clear, County Court was required to run the sentence imposed here “consecutively to [defendant's] undischarged term of imprisonment” (People v. Griner, 207 A.D.3d 892, 893, 172 N.Y.S.3d 193 [3d Dept. 2022] [internal quotation marks and citation omitted]).  In short, as there is no “legally authorized lesser sentence” that may be imposed (CPL 470.20[6]), the judgment of conviction is affirmed.

ORDERED that the judgment is affirmed.

Egan Jr., J.P.

Fisher, McShan and Powers, JJ., concur.