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People v. Miller

State of New York Supreme Court, Appellate Division Third Judicial Department


November 10, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ANTOINE L. MILLER, ALSO KNOWN AS GRAVY, APPELLANT.

MEMORANDUM AND ORDER

Calendar Date: September 29, 2010

Before: Mercure, J.P., Peters, Kavanagh, Stein and McCarthy, JJ.

Appeal from a judgment of the County Court of Albany County (Lamont, J.), rendered April 30, 2009, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Pursuant to a plea bargain, defendant pleaded guilty in March 2009 to attempted criminal sale of a controlled substance in the third degree in exchange for a prison sentence of 41/2 years followed by three years of postrelease supervision. At sentencing, with the People's consent, County Court sentenced defendant as a second felony offender to a reduced term of four years in prison followed by three years of postrelease supervision. Defendant now appeals.

Defendant's lone contention on this appeal is that, consistent with the intent of recent drug law reform, his sentence should be reduced in the interest of justice from incarceration to a treatment program. Initially we note that, as defendant concedes, the change in the law has no application to his circumstances (see CPL 216.05). Furthermore, based upon our review of the record, defendant's criminal history and the favorable plea bargain that he received, we do not find that County Court abused its discretion, nor are there extraordinary circumstances that would warrant a reduction in the lawful, agreed-upon sentence (see People v Savage, 72 AD3d 1292 [2010]; People v Darby, 72 AD3d 1280, 1284 [2010], lvs denied 15 NY3d 747, 749, 754 [2010]).

Mercure, J.P., Peters, Kavanagh, Stein and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed.

20101110

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