                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 18, 2014                   105792
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

SHANE DUNHAM, Also Known as
   BREEZY,
                    Appellant.
________________________________


Calendar Date:   August 4, 2014

Before:   McCarthy, J.P., Garry, Rose, Devine and Clark, JJ.

                             __________


      Andrew Kossover, Public Defender, Kingston (Michael K.
Gould of counsel), for appellant.

      D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.

                             __________


      Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered December 19, 2012, convicting defendant
upon his plea of guilty of the crime of assault in the second
degree.

      Defendant pleaded guilty to assault in the second degree in
satisfaction of a two-count indictment arising out of an incident
in which he allegedly fired a sawed-off shotgun into a group of
10 people, causing injury to several individuals. He was
sentenced to seven years in prison to be followed by three years
of postrelease supervision in accord with the plea agreement.
Defendant now appeals, arguing that the sentence was illegal
because County Court incorrectly stated at the time of sentencing
that defendant was convicted of attempted assault in the first
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degree – the top charge in the indictment – as opposed to the
charge to which defendant pleaded guilty, assault in the second
degree.

      In our view, the record reflects that County Court simply
misspoke when it indicated that defendant had pleaded guilty to
attempted assault in the first degree. During the plea
allocution, County Court accepted defendant's plea to assault in
the second degree and properly enumerated the elements of that
crime (see Penal Law § 120.05 [2]). Indeed, the record
establishes that the court and the parties understood that
defendant was pleading guilty to assault in the second degree and
would be sentenced to the maximum of seven years on that
conviction. That understanding is further reflected on the
uniform sentence and commitment order, which indicates that
defendant was convicted of the crime to which he pleaded guilty.
Accordingly, defendant's challenge to the legality of his
sentence is unavailing (see People v Kaetzel, 117 AD3d 1187,
1189-1190 [2014]; People v Leszczynski, 96 AD3d 1162, 1163 n 2
[2012], lv denied 19 NY3d 998 [2012]; see also People v Neal, 41
AD3d 971, 972 [2007]). Finally, given the favorable plea
resolution and defendant's criminal history, we reject his claim
that his sentence was harsh and excessive.

     McCarthy, J.P., Garry, Rose, Devine and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
