PEOPLE v. NEER (2004)

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered April 29, 2002, convicting defendant upon his plea of guilty of the crime of rape in the third degree.

Defendant waived indictment and pleaded guilty to rape in the third degree as charged in a superior court information.   At the time that defendant entered the plea, County Court indicated that it would sentence defendant to six months in jail, to be followed by 10 years' probation.   After receipt of the presentence investigation report, however, County Court informed the parties that it could not adhere to the original sentence and intended to sentence defendant to 1 1/313 to 4 years in prison.   Because of this change, the court afforded defendant the opportunity to withdraw his plea, which defendant declined.   Subsequently, the court sentenced defendant to 1 1/313 to 4 years in prison, and defendant now appeals.

We reject defendant's claim that the sentence is harsh and excessive.   Defendant admitted to having sexual intercourse with his 16-year-old stepdaughter.   According to the presentence investigation report, the victim reported that she had been sexually abused by defendant since the age of seven.   She related that she remained silent for many years because defendant had threatened her with physical harm.   Defendant was convicted in 1996 of sexual abuse in the third degree and endangering the welfare of a child as the result of molesting the victim's sister.   In view of the nature of the crime and defendant's continued victimization of young girls, we find no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v. Shute, 243 A.D.2d 794, 795, 662 N.Y.S.2d 853 [1997];  People v. Lilley, 238 A.D.2d 755, 756, 656 N.Y.S.2d 491 [1997], lv. denied 90 N.Y.2d 860, 661 N.Y.S.2d 187, 683 N.E.2d 1061 [1997];  People v. Blair, 228 A.D.2d 720, 643 N.Y.S.2d 430 [1996] ).

ORDERED that the judgment is affirmed.