People v. Kemp

Appellate Division of the Supreme Court of New York

People v. Kemp

112 A.D.3d 1376, 977 N.Y.S.2d 536

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 27, 2013

StatusPublished

This text of 112 A.D.3d 1376 (People v. Kemp) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Kemp, 112 A.D.3d 1376, 977 N.Y.S.2d 536 (N.Y. Ct. App. 2013).

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Opinion

Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J), rendered September 4, 2012. The judgment convicted defendant, upon his plea of guilty, of attempted rape in the second degree.

[1377]*1377It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted rape in the second degree (Penal Law §§ 110.00, 130.30 [1]), defendant contends that the sentence imposed, a determinate term of incarceration of two years plus five years’ postrelease supervision, is unduly harsh and severe. We agree with defendant that his waiver of the right to appeal does not preclude him from challenging the severity of his sentence, inasmuch as “the record establishes that defendant waived his right to appeal before County Court advised him of the potential periods of imprisonment that could be imposed” (People v Mingo, 38 AD3d 1270, 1271 [2007]; see People v Adams, 94 AD3d 1428, 1429 [2012], lv denied 19 NY3d 970 [2012]). Nevertheless, we perceive no basis to exercise our power to modify his sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6]).

Although defendant was only 19 years old when he was sentenced, he already had a criminal record, along with a youthful offender adjudication and extensive contact with the criminal justice system as a juvenile. We also note that defendant was previously sentenced to probation in connection with the youthful offender adjudication but failed to comply with its terms and conditions, thus resulting in his being resentenced to incarceration. Finally, we note that the certificate of conviction incorrectly reflects that defendant was sentenced to a two-year period of postrelease supervision and therefore must be amended to correct that error (see People v Saxton, 32 AD3d 1286, 1286-1287 [2006]). Present — Smith, J.P, Fahey, Lindley, Sconiers and Whalen, JJ.

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Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J), rendered September 4, 2012. The judgment convicted defendant, upon his plea of guilty, of attempted rape in the second degree.

[1377]*1377It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted rape in the second degree (Penal Law §§ 110.00, 130.30 [1]), defendant contends that the sentence imposed, a determinate term of incarceration of two years plus five years’ postrelease supervision, is unduly harsh and severe. We agree with defendant that his waiver of the right to appeal does not preclude him from challenging the severity of his sentence, inasmuch as “the record establishes that defendant waived his right to appeal before County Court advised him of the potential periods of imprisonment that could be imposed” (People v Mingo, 38 AD3d 1270, 1271 [2007]; see People v Adams, 94 AD3d 1428, 1429 [2012], lv denied 19 NY3d 970 [2012]). Nevertheless, we perceive no basis to exercise our power to modify his sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6]).

Although defendant was only 19 years old when he was sentenced, he already had a criminal record, along with a youthful offender adjudication and extensive contact with the criminal justice system as a juvenile. We also note that defendant was previously sentenced to probation in connection with the youthful offender adjudication but failed to comply with its terms and conditions, thus resulting in his being resentenced to incarceration. Finally, we note that the certificate of conviction incorrectly reflects that defendant was sentenced to a two-year period of postrelease supervision and therefore must be amended to correct that error (see People v Saxton, 32 AD3d 1286, 1286-1287 [2006]). Present — Smith, J.P, Fahey, Lindley, Sconiers and Whalen, JJ.

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Bluebook (online)

112 A.D.3d 1376, 977 N.Y.S.2d 536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kemp-nyappdiv-2013.

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