THE PEOPLE OF THE STATE OF NEW YORK v. SPENCER DECOSTE

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

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SPENCER L. DECOSTE, Appellant.

106339

Decided: November 10, 2016

Before:  Peters, P.J., McCarthy, Garry, Lynch and Rose, JJ. Elena Jaffe Tastensen, Saratoga Springs, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.

MEMORANDUM AND ORDER

Calendar Date:  September 20, 2016

Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered October 29, 2013, which revoked defendant's probation and imposed a sentence of imprisonment.

In 2012, defendant pleaded guilty to two counts of criminal possession of a controlled substance in the fifth degree and was sentenced to six months in jail and five years of probation.  In March 2013, after admitting to violating the terms of his probation, his probation was amended to include his participation in a drug court program.  Defendant thereafter was sanctioned for several violations of the drug court program between July 2013 and October 2013, but was continued on probation.  Ultimately, defendant was terminated from the drug court program and, as a result, County Court revoked his probation and sentenced him to two consecutive terms of two years in prison, to be followed by one year of postrelease supervision.1  Defendant now appeals.

Defendant's sole contention on appeal is that his sentence is harsh and excessive.  We disagree.  “A sentence that is within the permissible statutory range will not be disturbed unless the sentencing court abused its discretion or extraordinary circumstances exist warranting a modification” (People v. Ciarleglio, 299 A.D.2d 571, 572 [2002] [citations omitted];  accord People v. Lowe, 53 AD3d 982, 983 [2008] ).  Here, the sentence imposed was less than the maximum permissible sentence (see Penal Law § 70.70[2][a][iii] ).  Moreover, defendant was unable to comply with the terms of his probation, despite being provided numerous opportunities to do so.  Under these circumstances, we find no abuse of discretion nor any extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v. King, 93 AD3d 995, 996 [2012];  People v. Smurphat, 91 AD3d 980, 981 [2012], lv denied 18 NY3d 962 [2012] ).

Peters, P.J., McCarthy, Garry, Lynch and Rose, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court

FOOTNOTES

FN1. Although County Court attempted to impose consecutive periods of postrelease supervision, the periods merged by operation of law (see Penal Law § 70.45[5][c];  People v. Thorpe, 141 AD3d 927, 928 n 1 [2016] )..  FN1. Although County Court attempted to impose consecutive periods of postrelease supervision, the periods merged by operation of law (see Penal Law § 70.45[5][c];  People v. Thorpe, 141 AD3d 927, 928 n 1 [2016] ).