PEOPLE v. COLEMAN (2019)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Broome County (Dooley, J.), rendered November 14, 2017, convicting defendant upon his plea of guilty of the crime of criminal sexual act in the first degree.

Defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with one count of criminal sexual act in the first degree.  Defendant then agreed to plead guilty to the charged crime with the understanding that his sentence would be capped at 10 years in prison followed by 20 years of postrelease supervision and that he would retain the right to argue for a lesser sentence.  Following defendant's guilty plea, the matter was adjourned for sentencing.  After reviewing, among other things, the presentence investigation report and a separate presentence memorandum submitted on behalf of defendant, County Court sentenced defendant to 10 years in prison followed by 20 years of postrelease supervision.  Defendant appeals, contending that the sentence imposed is harsh and excessive.

“A sentence that falls within the permissible statutory range will not be disturbed unless it can be shown that the sentencing court abused its discretion or extraordinary circumstances exist warranting a modification” (People v. Sindoni, 175 A.D.3d 750, 750, 106 N.Y.S.3d 431 [2019] [internal quotation marks and citations omitted];  accord People v. Westmoreland, 164 A.D.3d 1550, 1550, 81 N.Y.S.3d 780 [2018] ).  The prison term imposed by County Court (10 years) was far less than the maximum term of imprisonment (25 years) that could have been imposed upon defendant's conviction of criminal sexual act in the first degree – a class B violent felony (see Penal Law §§ 60.05[3];  70.02[1][a];  [3][a];  130.50) – and the record reflects that County Court gave due consideration to the mitigating factors cited by defendant, as well as his request that he be placed in a particular correctional facility.  In this regard, despite defendant's professed remorse (see People v. Davis, 114 A.D.3d 1003, 1004, 979 N.Y.S.2d 878 [2014], lv denied 23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014] ), his assertion that he was sexually abused as a child (see People v. Taft, 115 A.D.3d 1095, 1095, 982 N.Y.S.2d 402 [2014] ) and his stated intellectual challenges (see People v. Charlton, 192 A.D.2d 757, 760, 596 N.Y.S.2d 210 [1993], lv denied 81 N.Y.2d 1071, 601 N.Y.S.2d 590, 619 N.E.2d 668 [1993] ), the fact remains that he sexually abused a five-year-old family member.  Accordingly, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the sentence in the interest of justice.

ORDERED that the judgment is affirmed.

Egan Jr., J.P., Lynch, Clark and Devine, JJ., concur.