PEOPLE v. LEE

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

The PEOPLE of the State of New York, Respondent, v. Gregory LEE, Appellant.

Decided: July 26, 2007

Before:  CREW III, J.P., CARPINELLO, MUGGLIN, ROSE and LAHTINEN, JJ. Barry J. Jones, Queensbury, for appellant. Derek P. Champagne, District Attorney, Malone (Glenn MacNeil of counsel), for respondent.

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered September 6, 2005, convicting defendant upon his plea of guilty of the crime of attempted burglary in the third degree.

Defendant was sentenced as a second felony offender to 2 to 4 years in prison upon his conviction of attempted burglary in the third degree.   He appealed and this Court rejected an Anders brief, withheld decision and assigned new counsel (32 A.D.3d 1054, 820 N.Y.S.2d 672 [2006] ).   We now address the only nonfrivolous issue raised on defendant's behalf, which relates to the severity of the sentence.

Although the sentence imposed was the maximum authorized (see Penal Law § 70.06[3][e];  [4][b] ), no sentencing promise was made by County Court, defendant was sentenced as a second felony offender and he accepted the plea not only in satisfaction of a pending indictment charging him with burglary in the third degree, but also a pending driving while intoxicated charge.   In view of this, we do not find that any extraordinary circumstances exist warranting a reduction of the sentence in the interest of justice or that County Court abused its discretion (see People v. Venable, 24 A.D.3d 1109, 1110, 807 N.Y.S.2d 179 [2005] ).   Therefore, the judgment is affirmed.

ORDERED that the judgment is affirmed.

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