People v McKinney

People v Mckinney 2016 NY Slip Op 05671 Decided on July 28, 2016 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: July 28, 2016
106655

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

RYAN McKINNEY, Appellant.

Calendar Date: June 6, 2016
Before: McCarthy, J.P., Garry, Lynch, Mulvey and Aarons, JJ.

Teresa C. Mulliken, Harpersfield, for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Broome County (Lehmann, J.), rendered February 21, 2014, convicting defendant upon his plea of guilty of the crime of attempted strangulation in the second degree.

As a result of a domestic dispute culminating in a physical altercation with his paramour, defendant was charged in a superior court information with the crime of strangulation in the second degree. Pursuant to a plea agreement, defendant pleaded guilty to attempted strangulation in the second degree, a class E felony. County Court ultimately sentenced defendant, in accordance with the terms of the plea agreement, to a five-year term of probation.

Defendant's sole contention on appeal is that the five-year term of probation is harsh and excessive and should be reduced to

three years in the interest of justice. We do not agree. "A sentence that falls within the permissible statutory range will not be disturbed unless it can be shown that the sentencing court abused its discretion or extraordinary circumstances exist warranting a modification" (People v Ramos, 133 AD3d 904, 908 [2015] [internal quotations marks and citations omitted], lvs denied 26 NY3d 1143, 1149 [2016]; People v Simmons, 122 AD3d 1169, 1169 [2014], lv denied 25 NY3d 1171 [2015]). Given defendant's prior criminal history, within both California and this state, and the fact that the term of probation was the length negotiated by the parties and that defendant was already on probation when he committed the instant offense, we discern no extraordinary circumstances or an abuse of discretion that would warrant modification of the sentence (see CPL 470.15 [6] [b]; People v Johnson, 182 AD2d 922, 922 [1992], lv denied 80 NY2d 833 [1992]; People v Manners, 54 AD2d 938, 938 [1976]).

McCarthy, J.P., Garry, Lynch, Mulvey and Aarons, JJ., concur.

ORDERED that the judgment is affirmed.