State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 9, 2015 106021
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
KAREEM McFADDEN,
Appellant.
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Calendar Date: February 24, 2015
Before: Garry, J.P., Rose, Lynch and Devine, JJ.
__________
Aaron A. Louridas, Delmar, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K.
Galligan of counsel), for respondent.
__________
Appeal from a judgment of the County Court of Sullivan
County (LaBuda, J.), rendered August 6, 2012, which revoked
defendant's probation and resentenced him to a period of
imprisonment.
In satisfaction of a five-count indictment, defendant
entered a guilty plea to criminal possession of a controlled
substance in the third degree and waived his right to appeal, in
exchange for a sentencing promise of between five years of
probation and 4½ years in prison with two years of postrelease
supervision (hereinafter PRS). Sentencing was delayed so that
defendant could complete inpatient rehabilitation. On February
27, 2012, based upon his positive participation in
rehabilitation, County Court sentenced him to five years of
probation, six months of which was to be served in jail,
conditioned upon, among other things, intensive supervision and
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continuing successful inpatient treatment. Defendant did not
appeal from that judgment.
Thereafter, defendant was twice charged with violating
probation. He was found guilty as charged in the first violation
petition and conditional probation was continued. After
defendant entered a guilty plea to the second probation violation
petition, he was sentenced on August 1, 2012 to 7½ years in
prison with two years of PRS, and filed the instant notice of
appeal pro se the next day. He was thereafter resentenced on
August 6, 2012 for that second probation violation to 4½ years in
prison with two years of PRS, but did not file another notice of
appeal. Defendant now appeals.1
Defendant's sole contention on appeal is that the
subsequent resentence imposed by County Court was harsh and
excessive. As a preliminary matter, we note that defendant
failed to file a notice of appeal from the resentencing.
However, despite the notice of appeal being premature with
respect thereto, we will exercise our discretion and treat the
notice of appeal as valid (see CPL 460.10 [6]; People v Shan, 117
AD3d 1098, 1098 [2014], lv denied 23 NY3d 1042 [2014]; People v
Brainard, 111 AD3d 1162, 1163 n 2 [2013]; People v Therrien, 78
AD3d 1331, 1332 [2010]). Further, his appeal waiver in
connection with the original sentence does not preclude him from
challenging the severity of the resentence (see People v
Lavalley, 100 AD3d 1151, 1151 n [2012]; People v Ross, 67 AD3d
1130, 1130 [2009]).
Addressing the merits, the record reflects that County
Court considered all of the relevant factors, including
1
Defendant's pro se notice of appeal is from a "Judgment
of Conviction rendered [August 1], 2011" (emphasis added). While
there is no such 2011 judgment of conviction in the record before
us, it appears that when defendant, pro se, filed that notice of
appeal on August 2, 2012, he intended to appeal from the August
1, 2012 initial sentencing on the second probation violation. We
exercise our discretion to overlook this inaccuracy (see CPL
460.10 [6]; People v Pittman, 119 AD3d 1242, 1242 [2014]).
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defendant's lengthy criminal history and repeated violations of
probation and his discharge from treatment for multiple
transgressions. Given that the record discloses neither the
presence of extraordinary circumstances nor an abuse of
sentencing discretion warranting a reduction of the sentence in
the interest of justice, it will not be disturbed (see People v
Gassner, 118 AD3d 1221, 1222 [2014], lv denied 23 NY3d 1062
[2014]; People v Lavalley, 100 AD3d at 1152).
Garry, J.P., Rose, Lynch and Devine, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court