PEOPLE v. SCHERMERHORN (2007)

Appeal from a judgment of the County Court of Tompkins County (Sherman, J.), rendered October 28, 2004, convicting defendant upon his plea of guilty of two counts of the crime of driving while intoxicated.

Defendant was charged in an indictment with two counts of felony driving while intoxicated.   During the initial plea proceedings, the parties discussed a sentence that included 90 days in jail, probation and defendant's participation in drug treatment court, but those discussions ended when it was discovered that defendant previously underwent treatment in connection with prior alcohol-related convictions.   He ultimately pleaded guilty to the two counts of the indictment, but did not waive his right to appeal.   Defendant was advised of the potential sentencing options, but no particular sentence was agreed to as part of the plea.   He was ultimately sentenced to concurrent prison terms of 2 to 6 years and now appeals.

Contrary to defendant's claim, we do not find that the sentence imposed is harsh or excessive.   Defendant has two prior alcohol-related convictions, one of which arose from an automobile accident resulting in serious injury to an elderly man for which defendant served a significant amount of time in state prison.   He committed the current crimes within 10 years of these convictions, only four months after being released from parole supervision and following participation in multiple treatment programs.   In view of the foregoing, we do not find any abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v. Arnold, 2 A.D.3d 975, 976, 768 N.Y.S.2d 244 [2003], lv. denied 1 N.Y.3d 594, 776 N.Y.S.2d 226, 808 N.E.2d 362 [2004];  People v. Baker, 293 A.D.2d 820, 821-822, 742 N.Y.S.2d 391 [2002], lv. denied 98 N.Y.2d 708, 749 N.Y.S.2d 5, 778 N.E.2d 556 [2002] ).

ORDERED that the judgment is affirmed.