PEOPLE v. SCHMIDT (2019)

MEMORANDUM AND ORDER

Defendant was indicted and charged with one count of attempted rape in the second degree and one count of attempted criminal sexual act in the second degree.  The charges stemmed from an incident wherein defendant responded to a Craigslist advertisement for a “threesome”;  during the email exchanges that followed, defendant, then 68 years old, discussed having sexual intercourse and oral sex with a female who he believed to be 14 years old.  Although defendant thought that he was making these arrangements with the girl's stepfather, defendant actually was engaged in discussions with an undercover police officer.  Defendant subsequently pleaded guilty to the entire indictment with the understanding that there was no commitment as to sentencing.  County Court thereafter sentenced defendant upon each conviction to concurrent prison terms of 2 1/212 years followed by 10 years of postrelease supervision.  This appeal ensued.

The sole argument raised by defendant upon appeal is that the sentence imposed was harsh and excessive.  We disagree.  Although defendant was 69 years old at the time of sentencing, had engaged in treatment, had a limited criminal history, expressed remorse for his conduct and received numerous letters of support, he nonetheless actively pursued a sexual encounter with a 14–year–old girl.  Under these circumstances, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the sentence in the interest of justice (see generally People v. Mallard, 163 A.D.3d 1350, 1351, 82 N.Y.S.3d 653 [2018], lv denied 32 N.Y.3d 1066, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018];  People v. Blanco, 156 A.D.3d 945, 946, 66 N.Y.S.3d 722 [2017]).  Defendant's claim that County Court erred in failing to afford him an opportunity to make a statement prior to sentencing is unpreserved for our review as defendant failed to raise any objection in this regard at that time (see People v. Weis, 171 A.D.3d 1403, 1404 n., 97 N.Y.S.3d 537 [2019];  People v. Turner, 112 A.D.2d 647, 648, 492 N.Y.S.2d 164 [1985], lv denied 66 N.Y.2d 923, 498 N.Y.S.2d 1038, 489 N.E.2d 783 [1985]).  Accordingly, the judgment of conviction is affirmed.

ORDERED that the judgment is affirmed.

Egan Jr., J.P., Mulvey, Devine, Rumsey and Pritzker, JJ., concur.