People v. Walker

38 A.D.3d 1105, 830 N.Y.S.2d 921

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 2007
• Status: Published

Opinion

Cardona, P.J.

Appeal from a judgment of the County Court of Otsego County (Coccoma, J.), rendered May 19, 2003, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Defendant waived indictment by a grand jury and agreed to be prosecuted by a superior court information charging him with criminal sale of a controlled substance in the third degree. Pursuant to a negotiated plea agreement, defendant thereafter pleaded guilty to attempted criminal sale of a controlled substance in the third degree and was sentenced to 3 to 9 years in prison, with a recommendation that he be allowed to participate in a shock incarceration program. He now appeals and we affirm.

Initially, defendant contends and the People concede that his waiver of the right to appeal was not knowing, intelligent and voluntary (see People v Lopez, 6 NY3d 248, 256 [2006]). Upon our review of the record, we share that view (see People v Williams, 35 AD3d 971, 973 [2006]). For that reason, we have considered defendant’s further assertion that his sentence was harsh and excessive, yet find it to be unpersuasive. Contrary to defendant’s claim, the agreed-upon sentence was statutorily permissible and, given his criminal background and the nature of his crime, we cannot conclude that County Court abused its discretion or that any extraordinary circumstances are present which would warrant a reduction of the sentence (see People v Wallach, 35 AD3d 913, 914 [2006]; People v Milner, 28 AD3d 873, 874 [2006]).

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