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People v. Crump

Supreme Court of New York, Third Department

June 6, 2013

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
JOSHUA CRUMP, Appellant.

Calendar Date: April 17, 2013

G. Scott Walling, Queensbury, for appellant.

James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.

Before: Peters, P.J., Lahtinen, Stein and Garry, JJ.

MEMORANDUM AND ORDER

Peters, P.J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered June 27, 2011, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree, grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, conspiracy in the fourth degree and attempted petit larceny, and the violation of unlawful possession of marihuana.

In 2010, defendant and a codefendant were charged in an indictment with various offenses arising out of their entry into a residence. Defendant pleaded guilty to the entire indictment and waived his right to appeal without consideration. He was thereafter sentenced to an aggregate prison term of 8½ years, to be followed by five years of postrelease supervision. He appeals, and we affirm.

Contrary to the People's assertion, defendant was not required to move to withdraw his plea or vacate the judgment of conviction in order to preserve his challenge to the validity of his appeal waiver (see People v Baliraj, 101 A.D.3d 1175, 1176 [2012]; People v Lewis, 48 A.D.3d 880, 880-881 [2008]). Having exercised his statutory right to plead guilty to all of the charges levied against him in the indictment and inasmuch as "no promise, plea agreement, reduced charge, or any other bargain or consideration" was given in exchange for that plea, defendant was improperly required to waive his right to appeal (People v Nicelli, 74 A.D.3d 1235, 1236 [2010]; see CPL 220.10 [2]; People v Meiner, 20 A.D.3d 778, 778 n [2005]; People v Coles, 13 A.D.3d 665, 666 [2004]).

County Court's treatment of defense counsel prompted a recusal request, which was later withdrawn. Thus, defendant's claims surrounding the court's improper conduct are unpreserved (see People v White, 81 A.D.3d 1039, 1039 [2011]; People v Mao-Sheng Lin, 50 A.D.3d 1251, 1253 [2008], lv denied 10 N.Y.3d 961 [2008]; see also People v Carroway, 84 A.D.3d 1501, 1501 [2011], lv denied 17 N.Y.3d 805 [2011]).

Defendant's remaining assertion, that the sentence imposed was harsh and excessive, is without merit. County Court accepted defendant's contrition as genuine and appropriately took into account his age, criminal history, mental health and substance abuse issues, as well as his role in the charged offenses, in imposing a lighter sentence than that requested by the People. We thus perceive no abuse of discretion or extraordinary circumstances that would warrant a reduction in the sentence (see People v Sturdevant, 74 A.D.3d 1491, 1495 [2010], lv denied 15 N.Y.3d 810 [2010]; People v Wood, 299 A.D.2d 739, 744 [2002], lv denied 99 N.Y.2d 621 [2003]).

Lahtinen, Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed.


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