PEOPLE v. SAPIENZA (2012)

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered September 15, 2010, which resentenced defendant following his conviction of the crimes of criminal sexual act in the first degree, criminal sexual act in the second degree (three counts), rape in the second degree (three counts), criminal sexual act in the third degree (five counts), endangering the welfare of a child (two counts), unlawfully dealing with a child in the first degree (two counts) and sexual abuse in the third degree.

Following a jury trial, defendant was convicted of 17 sexually-related crimes involving two young females.   On appeal, this Court affirmed the convictions but found that County Court had imposed an illegal sentence with respect to some of these crimes and remitted the matter for resentencing (75 A.D.3d 768, 904 N.Y.S.2d 568 [2010] ).   County Court, in turn, resentenced defendant on the aforementioned crimes to an aggregate term of 35 years in prison, to be followed by 10 years of postrelease supervision.   Defendant now appeals.

 Defendant's sole contention is that the resentence is harsh and excessive.   Based upon our review of the record, we disagree.   Defendant engaged in a series of inappropriate sexual activities with each of the victims, beginning when they were only 13 and 16 years of age, over the course of several months.   One such incident involved defendant's use of force to compel one of the victims to perform oral sex.   It is clear from the victim impact statements that defendant's actions had a profound and devastating impact upon these young girls.   In view of this, and in the absence of any mitigating factors, we cannot conclude that there was an abuse of discretion or any extraordinary circumstances warranting a reduction of the resentence in the interest of justice (see People v. Gregory, 78 A.D.3d 1246, 1249, 910 N.Y.S.2d 295 [2010], lv. denied 16 N.Y.3d 831, 921 N.Y.S.2d 195, 946 N.E.2d 183 [2011];  People v. Brown, 67 A.D.3d 1197, 1198–1199, 888 N.Y.S.2d 680 [2009] ).   Contrary to defendant's claim, the fact that he obtained a longer sentence than the one originally proposed under the plea offer that he rejected does not establish that he was penalized for exercising his right to go to trial (see generally People v. Welch, 71 A.D.3d 1329, 1332, 897 N.Y.S.2d 546 [2010], lv. denied 15 N.Y.3d 811, 908 N.Y.S.2d 171, 934 N.E.2d 905 [2010] ).

ORDERED that the judgment is affirmed.

McCARTHY, J.

PETERS, J.P., ROSE, KAVANAGH and GARRY, JJ., concur.