People v. Gauthier

246 A.D.2d 928, 667 N.Y.S.2d 866, 1998 N.Y. App. Div. LEXIS 742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 1998
• Status: Published

Opinion

Yesawich Jr.

Appeal from a judgment of the County Court of Essex County (Berry, J.), rendered September 22, 1995, convicting defendant upon his plea of guilty of the crime of attempted sodomy in the first degree.

Defendant, charged in an 18-count indictment with, inter alia, varying degrees of sexual abuse and sodomy—and in full satisfaction thereof—pleaded guilty to a single count of attempted sodomy in the first degree as a lesser included offense of the first count of the indictment (charging him with sodomy in the first degree). He was sentenced to a prison term of 4 to 12 years in accordance with County Court’s promise to impose a sentence less than the statutory maximum.

Having pleaded guilty to a lesser included offense, defendant waived any challenge to the legal sufficiency of the Grand Jury evidence underlying the indictment (see, People v Pelchat, 62 NY2d 97, 108; People v Torres, 238 AD2d 827, 828, lv denied 90 NY2d 865). Similarly waived is defendant’s challenge to the specificity of the factual allegations in the indictment (see, People v Quattlebaum, 229 AD2d 729, lv denied 90 NY2d 896; People v Duboy, 150 AD2d 882, 884, lv denied 74 NY2d 846).

Given the persistent nature of defendant’s actions and the extremely advantageous plea bargain—he faced potential sentences totaling 172/s to 53 years—we reject defendant’s contention that the sentence imposed was harsh and excessive (see, People v Martin, 215 AD2d 942, 942-943). Furthermore, notwithstanding defendant’s alleged limited education, we find the over-all circumstances are not sufficiently extraordinary as to warrant a reduction in the sentence imposed (see, People v Washington, 209 AD2d 817, 819-820, lv denied 85 NY2d 944).

Mercure, J. P., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment is affirmed.