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The People of the State of v. Brandy K. Griffin

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


February 2, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
BRANDY K. GRIFFIN, APPELLANT.

Appeal from a judgment of the County Court of Broome County (Pelella, J.), rendered March 23, 2010, convicting defendant upon her plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

MEMORANDUM AND ORDER

Calendar Date: December 12, 2011

Before: Mercure, Acting P.J., Peters, Malone Jr., Kavanagh and Stein, JJ.

After waiving indictment and agreeing to be prosecuted by a superior court information charging her with criminal possession of a controlled substance in the third degree, defendant pleaded guilty to this charge. Under the terms of the plea agreement, her sentencing was held in abeyance while she participated in a substance abuse treatment program. If she successfully completed the program, her plea would be vacated, she would plead guilty to criminal possession of a controlled substance in the fifth degree and she would be sentenced to five years of probation. However, if defendant did not successfully complete the program, she would be subject to a term of incarceration to be determined by County Court. Defendant did not successfully complete the program and was sentenced by County Court to two years in prison, to be followed by two years of postrelease supervision. The court directed this sentence to run consecutively to a prison term of 1 to 3 years that was imposed by another court upon an unrelated conviction of driving while intoxicated. Defendant now appeals and we affirm.

Defendant's sole contention on appeal is that her sentence is harsh and excessive insofar as County Court directed that the sentence run consecutively to the sentence previously imposed for driving while intoxicated. We find this argument to be unpersuasive. Although defendant was given many opportunities to address her substance abuse problems, she repeatedly failed to comply with the terms of the treatment program and failed to appear in court even after a warrant was issued for her arrest. Moreover, she fully knew that the court could impose a term of imprisonment that it deemed proper in the event that she did not successfully complete the program, and the disposition of the driving while intoxicated charge was a separate matter and not part of the plea agreement. In view of the foregoing, among other things, the imposition of a consecutive sentence was entirely appropriate (see People v Reynoso, 11 AD3d 719, 720 [2004]), and we find no extraordinary circumstances nor any abuse of discretion warranting a modification of the sentence in the interest of justice (see People v Mason, 2 AD3d 1207, 1207 [2003]; People v Brooks, 283 AD2d 776, 776-777 [2001], lv denied 96 NY2d 916 [2001]).

Mercure, Acting P.J., Peters, Malone Jr., Kavanagh and Stein, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120202

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