People v. Battease

• Decision Date: 01 March 2012
• Citation: 2012 N.Y. Slip Op. 01522,93 A.D.3d 888,939 N.Y.S.2d 194
• Parties: The PEOPLE of the State of New York, Respondent, v. Phillip P. BATTEASE, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01522

93 A.D.3d 888

939 N.Y.S.2d 194

The PEOPLE of the State of New York, Respondent,

v.Phillip P. BATTEASE, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

March 1, 2012.

Bruce E. Knoll, Albany, for appellant, and appellant pro se.

Kevin C. Kortright, District Attorney, Fort Edward (Andrew J. Proler of counsel), for respondent.

Before: PETERS, J.P., ROSE, LAHTINEN, KAVANAGH and GARRY, JJ.

LAHTINEN, J.

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered July 21, 2010, which resentenced defendant following his conviction of the crimes of criminal sale of a controlled substance in the fifth degree, coercion in the first degree and incest in the third degree.

The facts are set forth in our decision in defendant's prior appeal (74 A.D.3d 1571, 904 N.Y.S.2d 241 [2010], lv. denied 15 N.Y.3d 849, 909 N.Y.S.2d 26, 935 N.E.2d 818 [2010] ). In that appeal, we reversed defendant's conviction on two of the five counts of which he had been convicted, vacated the sentence, and remitted for resentencing on the remaining three counts ( id. at 1577–1578, 904 N.Y.S.2d 241). Upon remittal, County Court sentenced defendant, as a persistent felony offender, to three concurrent terms of 20 years to life in prison. Defendant appeals.

Defendant contends that the persistent felony offender statute ( see Penal Law § 70.10) violates his right to equal protection because other statutory sentencing enhancements for recidivists do not permit consideration of convictions occurring more than 10 years earlier. We are unpersuaded. As we observed in a case rejecting an equal protection argument regarding the persistent felony and persistent violent felony offender sentencing statutes, “it is well settled ... that the Legislature may distinguish among the ills of society which require criminal sanction, and prescribe, as it reasonably views them, appropriate sanctions” ( People v. Turner, 234 A.D.2d 704, 707, 651 N.Y.S.2d 655 [1996] [internal quotation marks and citation omitted]; see People v. Beckwith, 309 A.D.2d 1253, 1254, 767 N.Y.S.2d 713 [2003] ). To the extent that defendant continues to challenge his sentence under Apprendi ( see Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 [2000] ), we addressed that issue in his earlier appeal. In any event, since such time the Second Circuit, sitting en banc, vacated a decision that had found New York's persistent felony offender statute to be constitutionally defective under Apprendi and its progeny ( see Portalatin v. Graham, 624 F.3d 69 [2nd Cir.2010], cert. denied ––– U.S. ––––, 131 S.Ct. 1693, 179 L.Ed.2d 646 [2011] ).

The People sustained their burden of proving defendant's prior felony convictions upon which his status as a persistent felony offender was predicated. At defendant's original sentencing, County Court determined, following a hearing, that defendant was a persistent felony offender, and that determination was not altered on appeal. The record contains defendant's certificates of conviction, and he is identified by, among other things, name, date of birth, Social Security number, and NYSID number ( see People v. Shaw, 83 A.D.3d 1101, 1102–1103, 922 N.Y.S.2d 171 [2011], lv. denied 17 N.Y.3d 801, 929 N.Y.S.2d 109, 952 N.E.2d 1104 [2011]; People v. Richards, 266 A.D.2d 714, 715–716, 698 N.Y.S.2d 785 [1999], lv. denied 94 N.Y.2d 924, 708 N.Y.S.2d 364, 729 N.E.2d 1163 [2000] ).

We are unpersuaded by defendant's argument that his sentence was harsh and excessive. In light of the nature of defendant's crimes and his extensive criminal history, County Court did not abuse its discretion, and we find no extraordinary circumstances warranting a reduction of the sentence ( see People v. Portee, 56 A.D.3d 947, 950, 867 N.Y.S.2d 564 [2008], lv. denied 12 N.Y.3d 820, 881 N.Y.S.2d 27, 28, 908 N.E.2d 935, 936 [2009]; People v. Murray, 267 A.D.2d 492, 495, 700 N.Y.S.2d 240 [1999], lvs. denied 94 N.Y.2d 923, 924, 708 N.Y.S.2d 363, 729 N.E.2d 1162 [2000] ). Nor do we find an abuse of discretion in the court's assessment of a $3,000 fine ( see People v. Shultis, 61 A.D.3d 1116, 1118, 876 N.Y.S.2d 740 [2009], lv. denied 12 N.Y.3d...