PEOPLE v. DENNY

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Erwin DENNY, Appellant.

Decided: January 28, 1999

Before:  MIKOLL, J.P., CREW, III, PETERS, SPAIN and CARPINELLO, JJ. O'Connell & Aronowitz (Stephen R. Coffey of counsel), Albany, for appellant. Sol Greenberg, District Attorney (Christopher D. Horn of counsel), Albany, for respondent.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered May 2, 1995, upon a verdict convicting defendant of the crime of manslaughter in the first degree.

Although charged with two counts of murder in the second degree, defendant was convicted following a jury trial of the lesser included offense of manslaughter in the first degree in connection with the stabbing death of the victim during a large brawl outside a bar in the Town of Colonie, Albany County.   Sentenced to 81/313 to 25 years, defendant contends that the sentence imposed was harsh and excessive and should be reduced in the interest of justice.   We disagree.   Although defendant has no prior criminal record and the probation report characterizes the stabbing as an “isolated incident”, County Court noted that the evidence at trial revealed that defendant had the opportunity to withdraw from the melee but chose instead to continue in the fight, ultimately stabbing the victim in the back.   Under the circumstances presented here, we find no extraordinary circumstances warranting a reduction of the sentence imposed (see, e.g., People v. Owens, 172 A.D.2d 883, 567 N.Y.S.2d 951, lv. denied 78 N.Y.2d 957, 573 N.Y.S.2d 652, 578 N.E.2d 450;  People v. Hadden, 158 A.D.2d 856, 552 N.Y.S.2d 53, lv. denied 76 N.Y.2d 847, 560 N.Y.S.2d 132, 559 N.E.2d 1291).

ORDERED that the judgment is affirmed.

MEMORANDUM DECISION.

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