Opinion
December 7, 1995
Appeal from the County Court of Washington County (Hemmett, Jr., J.).
Defendant, a man in his 50s, admitted at trial that he engaged in numerous sexual acts over an 11-month period with a 13-year-old foster child that he occasionally supervised. County Court sentenced defendant to four consecutive prison sentences of 2 1/3 to 7 years on the sodomy and rape in the second degree convictions, a consecutive sentence of 1 1/3 to 4 years for the rape in the third degree conviction and two concurrent one-year terms for the remaining counts. This appeal followed.
We reject defendant's principal contention that his sentence was harsh and excessive. At the outset, the aggregate of these sentences exceeds the statutory limitation imposed by Penal Law § 70.30 (1) (c) (i); however, this does not render the sentence illegal per se since the appropriate sentence will be calculated by the Department of Correctional Services ( see, People v Moore, 61 N.Y.2d 575, 578; People v Ramos, 208 A.D.2d 1052, 1053-1054, lv denied 85 N.Y.2d 913). Although it is true that County Court imposed the harshest permissible sentence, it is also clear from the record that the court did so only after a thorough examination of all the relevant concerns including the lack of mitigating factors to justify defendant's exploitive and heinous conduct against a child whose trust he had gained. Our review of the record reveals no reason to disturb the sentence imposed by County Court ( see, People v Fuller, 185 A.D.2d 446, 449-450, lv denied 80 N.Y.2d 974, lv denied upon reconsideration 81 N.Y.2d 788; People v Rossi, 185 A.D.2d 401, 403, lv denied 80 N.Y.2d 909).
We are also unpersuaded by defendant's claim that County Court imposed sentence without considering a proper presentence report made in compliance with CPL 390.30. While it is true that defendant was not interviewed by the probation officer, the record shows that this is because defendant declined to do so after being given an opportunity to discuss the case. Moreover, while the victim was not available to be interviewed for the report, the victim in fact appeared at defendant's sentencing and read a prepared statement. The record reveals that defendant submitted numerous supportive letters and documents to the court; however, we find that County Court, having presided at trial and having heard all the evidence, was in possession of all facts necessary to render an appropriate sentence.
Mercure, J.P., White, Casey and Peters, JJ., concur. Ordered that the judgment is affirmed.