PEOPLE v. SMITH

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

The PEOPLE of the State of New York, Respondent, v. Dean A. SMITH, Appellant.

Decided: October 27, 2005

Before:  CARDONA, P.J., MERCURE, SPAIN, LAHTINEN and KANE, JJ. Randolph V. Kruman, Cortland, for appellant. Gerald A. Keene, District Attorney, Owego, for respondent.

Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.), rendered October 3, 2003, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with criminal possession of a controlled substance in the third degree.   He pleaded guilty to this charge and, in accordance with the plea agreement, was sentenced to 5 to 15 years in prison.   He now appeals.

Defendant's sole argument is that the sentence imposed by County Court is harsh and excessive.   Although defendant relies upon a number of cases in which the sentences of defendants who were convicted of the same crime were reduced to a prison term shorter than his, these cases do not establish that defendant's sentence was excessive under the particular circumstances presented here.   The presentence investigation report reveals that defendant has a lengthy criminal history dating back to 1981 and has previously served state prison time.   He was heavily involved in drug trafficking at the time of committing the crime at issue and was found to be in possession of $13,000 as the result of his drug sales. In view of this, and the fact that defendant agreed to the sentence as part of the plea agreement, we find no extraordinary circumstances or any abuse of discretion warranting a reduction of the sentence in the interest of justice (see e.g. People v. Hodges, 13 A.D.3d 979, 980, 786 N.Y.S.2d 668 [2004];  People v. Jones, 295 A.D.2d 699, 743 N.Y.S.2d 320 [2002];  People v. Ruffo, 161 A.D.2d 894, 895, 557 N.Y.S.2d 458 [1990], lv. denied 76 N.Y.2d 864, 560 N.Y.S.2d 1004, 561 N.E.2d 904 [1990] ).

ORDERED that the judgment is affirmed.

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