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The People of the State of v. David Kornell

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


June 23, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DAVID KORNELL, APPELLANT.

MEMORANDUM AND ORDER

Calendar Date: May 11, 2011

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

Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.), rendered March 16, 2010, which revoked defendant's probation and imposed a sentence of imprisonment.

Following his plea of guilty to the crime of criminal mischief in the second degree, defendant was sentenced to five years of probation and was ordered to pay restitution. Thereafter, he violated the terms of his probation as a result of his arrest for driving while intoxicated and his admission to consuming alcohol. Defendant subsequently pleaded guilty to violating the terms of his probation and his probation was revoked. County Court did not make any sentencing promise as part of the plea agreement and resentenced defendant on the underlying crime to 2a to 7 years in prison. Defendant now appeals.

Defendant's sole contention is that the resentence is harsh and excessive. Based upon our review of the record, we disagree. Defendant engaged in violent conduct by destroying property valued at over $39,000 at the time of the initial offense. He did so after he had consumed alcohol and he continued abusing alcohol and engaging in a pattern of volatile behavior while on probation, eventually pleading guilty to the crime of driving while intoxicated. In view of the foregoing, we do not find the existence of extraordinary circumstances or any abuse of discretion warranting a reduction of the resentence in the interest of justice (see People v Tyler, 76 AD3d 1144 [2010]; People v Hunter, 62 AD3d 1207, 1208 [2009]).

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

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20110623

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