People v. Mitchell

Appellate Division of the Supreme Court of New York

People v. Mitchell

248 A.D.2d 763, 669 N.Y.S.2d 959, 1998 N.Y. App. Div. LEXIS 2220

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

DecidedMarch 5, 1998

StatusPublished

Cited by2 cases

This text of 248 A.D.2d 763 (People v. Mitchell) 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. Mitchell, 248 A.D.2d 763, 669 N.Y.S.2d 959, 1998 N.Y. App. Div. LEXIS 2220 (N.Y. Ct. App. 1998).

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Opinion

—Appeal from a judgment of the County Court of Cortland County (Smith, J.), rendered March 17, 1997, which resentenced defendant following his conviction of the crime of rape in the second degree.

Upon appeal of defendant’s conviction of the crimes of rape in the second degree and sexual abuse in the first degree, this Court modified the judgment by vacating the latter conviction [764]*764and remitting the matter to County Court for resentencing on defendant’s conviction of the crime of rape in the second degree (235 AD2d 834, Iv denied 89 NY2d 1038). Defendant was resentenced to a prison term of 21/s to 7 years, a sentence which he now argues constitutes an abuse of County Court’s discretion. We disagree.

Although County Court sentenced defendant to the maximum prison term statutorily permissible, which was also the same prison term originally imposed for the crime, our review of the record indicates that the court did so only after independently assessing all relevant factors, including the probation reports, the victim’s impact statement, arguments from counsel and institutional reports which were favorable to defendant. Moreover, we find that the sentence was neither harsh nor excessive. The sentence is within the statutory parameters and is fitting in view of the heinous nature of the crime committed against a 12-year-old victim (see, People v Deyo, 222 AD2d 757; People v Keller, 200 AD2d 843, Iv denied 83 NY2d 873).

Crew III, J. P., White, Yesawich Jr., Peters and Carpinello, JJ., concur.

Ordered that the judgment is affirmed.

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—Appeal from a judgment of the County Court of Cortland County (Smith, J.), rendered March 17, 1997, which resentenced defendant following his conviction of the crime of rape in the second degree.

Upon appeal of defendant’s conviction of the crimes of rape in the second degree and sexual abuse in the first degree, this Court modified the judgment by vacating the latter conviction [764]*764and remitting the matter to County Court for resentencing on defendant’s conviction of the crime of rape in the second degree (235 AD2d 834, Iv denied 89 NY2d 1038). Defendant was resentenced to a prison term of 21/s to 7 years, a sentence which he now argues constitutes an abuse of County Court’s discretion. We disagree.

Although County Court sentenced defendant to the maximum prison term statutorily permissible, which was also the same prison term originally imposed for the crime, our review of the record indicates that the court did so only after independently assessing all relevant factors, including the probation reports, the victim’s impact statement, arguments from counsel and institutional reports which were favorable to defendant. Moreover, we find that the sentence was neither harsh nor excessive. The sentence is within the statutory parameters and is fitting in view of the heinous nature of the crime committed against a 12-year-old victim (see, People v Deyo, 222 AD2d 757; People v Keller, 200 AD2d 843, Iv denied 83 NY2d 873).

Crew III, J. P., White, Yesawich Jr., Peters and Carpinello, JJ., concur.

Ordered that the judgment is affirmed.

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Bluebook (online)

248 A.D.2d 763, 669 N.Y.S.2d 959, 1998 N.Y. App. Div. LEXIS 2220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mitchell-nyappdiv-1998.

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