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The People of the State of v. Justin M. Appleby

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


December 30, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JUSTIN M. APPLEBY, APPELLANT.

The opinion of the court was delivered by: Egan Jr., J.

Decided and Entered: December 30, 2010

MEMORANDUM AND ORDER Calendar Date: November 19, 2010

Before: Mercure, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ.

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered March 1, 2010, convicting defendant upon his plea of guilty of the crime of leaving the scene of an accident without reporting.

Defendant pleaded guilty to a single-count indictment charging him with leaving the scene of an accident without reporting, which resulted in the death of a bicyclist, and was sentenced to the agreed-upon prison term of 1 to 3 years. Defendant now appeals, contending only that the sentence imposed was harsh and excessive.

"Absent an abuse of discretion or extraordinary circumstances warranting a reduction of the sentence imposed, a sentence that falls within the permissible statutory range will not be disturbed" (People v Hanrahan, 9 AD3d 689, 689 [2004] [citations omitted]; see People v Kennedy, 46 AD3d 1099, 1101 [2007], lv denied 10 NY3d 841 [2008]; People v Brown, 46 AD3d 949, 952 [2007], lv denied 10 NY3d 808 [2008]). Here, the sentence imposed was within the permissible statutory range for a class D nonviolent felony (see Penal Law § 70.00 [2] [d]; [3] [b] [2a to 7 years]) and, contrary to defendant's assertion, it is apparent that the sentencing court took into consideration defendant's family circumstances in pronouncing sentence. Upon our review of the record as a whole, we cannot say that County Court abused its discretion in this regard or that defendant otherwise demonstrated the existence of extraordinary circumstances warranting a reduction of his sentence in the interest of justice. Accordingly, the judgment is affirmed.

Mercure, J.P., Malone Jr., Stein and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20101230

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