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The People of the State of New York v. Alisa A. King

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


March 15, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ALISA A. KING, APPELLANT.

Appeal from a judgment of the County Court of Clinton County (Ryan, J.), entered December 14, 2010, which revoked defendant's probation and imposed a sentence of imprisonment.

MEMORANDUM AND ORDER

Calendar Date: January 23, 2012

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

In satisfaction of a four-count indictment, defendant pleaded guilty to two counts of criminal possession of a controlled substance in the fourth degree and two counts of criminal sale of a controlled substance in the fourth degree and waived her right to appeal. After complying with the terms of interim probation, completing inpatient drug treatment and being accepted into the drug court program, defendant was sentenced to a five-year term of probation. Thereafter, defendant was charged with violating the terms of her probation on two occasions, which she admitted. As the result of her second violation, County Court revoked her probation and sentenced her to four years in prison followed by two years of postrelease supervision for each of the crimes, which sentences were to run concurrently. Defendant appeals.

Defendant contends that her sentence is harsh and excessive. Initially, although defendant waived her right to appeal this issue, the record does not reveal that she was advised that the waiver was separate and distinct from other rights forfeited by her guilty plea and, therefore, her waiver is invalid (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Mosher, 79 AD3d 1272, 1273 [2010], lv denied 16 NY3d 834 [2011]). Accordingly, we shall address the merits of defendant's claim. Under the circumstances presented, however, we do not find that the sentence was unduly severe. Defendant was given more that one opportunity to comply with the terms of her probation, but was repeatedly unable to abstain from using controlled substances. This was an important term of defendant's probation given the nature of the underlying crimes and her drug abuse history. Moreover, under the terms of the guilty plea, sentencing was left to the discretion of County Court and it could well have sentenced her to a longer term for each crime following the revocation of her probation (see Penal Law § 70.45 [2] [b]; § 70.70 [2] [a] [ii]). In sum, we find no abuse of discretion nor any extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v Feliciano, 54 AD3d 1131, 1132-1133 [2008]; People v Buchner, 30 AD3d 912, 913 [2006]).

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

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120315

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