People v Miller

People v Miller 2010 NY Slip Op 08015 [78 AD3d 1324] November 10, 2010 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

The People of the State of New York, Respondent, v Antoine L. Miller, Also Known as Gravy, Appellant.

—[*1] Keeley A. Maloney, Albany, for appellant. P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.

Appeal from a judgment of the County Court of Albany County (Lamont, J.), rendered April 30, 2009, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Pursuant to a plea bargain, defendant pleaded guilty in March 2009 to attempted criminal sale of a controlled substance in the third degree in exchange for a prison sentence of 4½ years followed by three years of postrelease supervision. At sentencing, with the People's consent, County Court sentenced defendant as a second felony offender to a reduced term of four years in prison followed by three years of postrelease supervision. Defendant now appeals.

Defendant's lone contention on this appeal is that, consistent with the intent of recent drug law reform, his sentence should be reduced in the interest of justice from incarceration to a treatment program. Initially we note that, as defendant concedes, the change in the law has no application to his circumstances (see CPL 216.05). Furthermore, based upon our review of the record, defendant's criminal history and the favorable plea bargain that he received, we do not find that County Court abused its discretion, nor are there extraordinary circumstances that would warrant a reduction in the lawful, agreed-upon sentence (see People v Savage, 72 AD3d 1292 [2010]; People v Darby, 72 AD3d 1280, 1284 [2010], lv denied 15 NY3d 747 [2010]). [*2]

Mercure, J.P., Peters, Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.