PEOPLE v. CURRY

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

The PEOPLE of the State of New York, Respondent, v. Paul CURRY, Appellant.

107947

Decided: February 08, 2018

Before:  Egan Jr., J.P., Devine, Mulvey, Aarons and Rumsey, JJ. Paul J. Connolly, Delmar, for appellant. James R. Farrell, District Attorney, Monticello (Richard K. Caister of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of County Court of Sullivan County (McGuire, J.), rendered February 5, 2015, which resentenced defendant following his conviction of the crime of rape in the first degree.

When this matter was previously before us, we vacated defendant's sentence and remitted the matter to County Court for resentencing on the basis that the fine and restitution imposed were improper because they had not been set forth as part of the plea agreement (123 A.D.3d 1381, 1384, 999 N.Y.S.2d 591 [2014], lv denied 25 N.Y.3d 950, 7 N.Y.S.3d 279, 30 N.E.3d 170 [2015] ).  In remitting the matter, we instructed that either defendant be permitted the opportunity to withdraw his plea in the event that an enhanced sentence containing such terms be imposed or, in the alternative, that defendant be resentenced in accordance with the plea agreement (123 A.D.3d at 1384, 999 N.Y.S.2d 591).  Upon remittal, County Court resentenced defendant to a prison term of 25 years, followed by 20 years of postrelease supervision, but no fine or restitution was imposed.  Defendant appeals.

Initially, we are unpersuaded by defendant's contention that County Court failed to comply with the dictates of this Court's prior decision remitting the matter for resentencing.  The negotiated plea agreement provided that County Court would not be bound by its sentencing commitment and defendant would be subject to a prison term of up to 25 years in the event that he violated the conditions of the plea agreement.  Inasmuch as defendant admitted to violating a condition of the plea agreement by failing to comply with the terms of the order of protection, the prison term imposed at resentencing comported with the agreed-upon plea terms.

Further, we find no abuse of discretion in County Court denying defense counsel's request at resentencing for a mental health examination of defendant.  There is no indication that defendant lacked the capacity to understand the proceedings at the time of the resentencing (see People v. Miranda, 67 A.D.3d 709, 711, 886 N.Y.S.2d 890 [2009], lv denied 15 N.Y.3d 922, 913 N.Y.S.2d 649, 939 N.E.2d 815 [2010] ), and the record reflects that the court possessed all the facts necessary to appropriately resentence defendant (see e.g. People v. Ruff, 50 A.D.3d 1167, 1168, 854 N.Y.S.2d 787 [2008] ).  Finally, defendant's valid waiver of the right to appeal precludes any challenge to the resentence as harsh and excessive (see People v. Volfson, 79 A.D.3d 1532, 1533 [2010], 915 N.Y.S.2d 653, lv denied 16 N.Y.3d 900, 926 N.Y.S.2d 36, 949 N.E.2d 984 [2011] ).

Devine, Mulvey, Aarons and Rumsey, JJ., concur.

ORDERED that the judgment is affirmed.

Egan Jr., J.P.

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