State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 9, 2015 106021 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

KAREEM McFADDEN,

Appellant.

________________________________

Calendar Date: February 24, 2015

Before: Garry, J.P., Rose, Lynch and Devine, JJ.

__________

Aaron A. Louridas, Delmar, for appellant.

James R. Farrell, District Attorney, Monticello (Meagan K.

Galligan of counsel), for respondent.

__________

Appeal from a judgment of the County Court of Sullivan

County (LaBuda, J.), rendered August 6, 2012, which revoked

defendant's probation and resentenced him to a period of

imprisonment.

In satisfaction of a five-count indictment, defendant

entered a guilty plea to criminal possession of a controlled

substance in the third degree and waived his right to appeal, in

exchange for a sentencing promise of between five years of

probation and 41⁄2 years in prison with two years of postrelease

supervision (hereinafter PRS). Sentencing was delayed so that

defendant could complete inpatient rehabilitation. On February

27, 2012, based upon his positive participation in

rehabilitation, County Court sentenced him to five years of

probation, six months of which was to be served in jail,

conditioned upon, among other things, intensive supervision and
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continuing successful inpatient treatment. Defendant did not

appeal from that judgment.

Thereafter, defendant was twice charged with violating

probation. He was found guilty as charged in the first violation

petition and conditional probation was continued. After

defendant entered a guilty plea to the second probation violation

petition, he was sentenced on August 1, 2012 to 71⁄2 years in

prison with two years of PRS, and filed the instant notice of

appeal pro se the next day. He was thereafter resentenced on

August 6, 2012 for that second probation violation to 41⁄2 years in

prison with two years of PRS, but did not file another notice of

appeal. Defendant now appeals.1

Defendant's sole contention on appeal is that the

subsequent resentence imposed by County Court was harsh and

excessive. As a preliminary matter, we note that defendant

failed to file a notice of appeal from the resentencing. 

However, despite the notice of appeal being premature with

respect thereto, we will exercise our discretion and treat the

notice of appeal as valid (see CPL 460.10 [6]; People v Shan, 117

AD3d 1098, 1098 [2014], lv denied 23 NY3d 1042 [2014]; People v

Brainard, 111 AD3d 1162, 1163 n 2 [2013]; People v Therrien, 78

AD3d 1331, 1332 [2010]). Further, his appeal waiver in

connection with the original sentence does not preclude him from

challenging the severity of the resentence (see People v

Lavalley, 100 AD3d 1151, 1151 n [2012]; People v Ross, 67 AD3d

1130, 1130 [2009]). 

Addressing the merits, the record reflects that County

Court considered all of the relevant factors, including

1 Defendant's pro se notice of appeal is from a "Judgment

of Conviction rendered [August 1], 2011" (emphasis added). While

there is no such 2011 judgment of conviction in the record before

us, it appears that when defendant, pro se, filed that notice of

appeal on August 2, 2012, he intended to appeal from the August

1, 2012 initial sentencing on the second probation violation. We

exercise our discretion to overlook this inaccuracy (see CPL

460.10 [6]; People v Pittman, 119 AD3d 1242, 1242 [2014]).
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defendant's lengthy criminal history and repeated violations of

probation and his discharge from treatment for multiple

transgressions. Given that the record discloses neither the

presence of extraordinary circumstances nor an abuse of

sentencing discretion warranting a reduction of the sentence in

the interest of justice, it will not be disturbed (see People v

Gassner, 118 AD3d 1221, 1222 [2014], lv denied 23 NY3d 1062

[2014]; People v Lavalley, 100 AD3d at 1152). 

Garry, J.P., Rose, Lynch and Devine, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court