PEOPLE v. BERTSCH (2006)

Appeal from a judgment of the County Court of Otsego County (Burns, J.), rendered July 15, 2005, which revoked defendant's probation and imposed a sentence of imprisonment.

Pursuant to a plea agreement, defendant pleaded guilty to criminally negligent homicide and driving while ability impaired in full satisfaction of a seven-count indictment handed up against her in connection with a fatal automobile accident.   County Court sentenced defendant to 90 days in jail, five years of probation and 500 hours of community service.   The court subsequently determined that defendant violated the condition of her probation that prohibited her from consuming any alcohol.   County Court thereafter revoked defendant's probation and resentenced her to a prison term of 1 1/313 to 4 years.   Defendant now appeals, arguing that the sentence imposed is harsh and excessive.

 We will not disturb a trial court's sentencing determination absent an abuse of discretion or extraordinary circumstances (see People v. Sawinski, 294 A.D.2d 667, 669, 742 N.Y.S.2d 690 [2002], lv. denied 98 N.Y.2d 701, 747 N.Y.S.2d 420, 776 N.E.2d 9 [2002];  People v. Hawke, 270 A.D.2d 646, 647, 705 N.Y.S.2d 413 [2000] ).   In light of the severity of the underlying offense and defendant's apparent inability to cease from engaging in similar conduct, even after serving an initial period of incarceration, we find that County Court did not abuse its discretion in sentencing her to a term of imprisonment notwithstanding her otherwise unremarkable criminal history and her involvement in community service (see People v. Novack, 233 A.D.2d 617, 617, 650 N.Y.S.2d 43 [1996];  People v. Yusko, 222 A.D.2d 928, 928, 635 N.Y.S.2d 766 [1995], lv. denied 87 N.Y.2d 1027, 644 N.Y.S.2d 161, 666 N.E.2d 1075 [1996];  People v. Heidorf, 186 A.D.2d 915, 916, 589 N.Y.S.2d 628 [1992] ).

ORDERED that the judgment is affirmed.