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People v. Kearns

State of New York Supreme Court, Appellate Division Third Judicial Department


October 8, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JAMES M. KEARNS, APPELLANT.

Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered July 1, 2008, convicting defendant upon his plea of guilty of the crime of burglary in the second degree (eight counts).

MEMORANDUM AND ORDER

Calendar Date: August 3, 2009

Before: Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ.

Defendant entered a private residence in Columbia County on eight different occasions in June and July 2007 and took money. As a result, he was charged with eight counts of burglary in the second degree. Defendant pleaded guilty to all of the charges. Although no specific sentence was promised as part of the plea agreement, defendant was advised of the maximum sentence that could be imposed. He was subsequently sentenced to an aggregate term of 14 years in prison, to be followed by five years of postrelease supervision. Defendant appeals.

Defendant's sole argument is that the sentence imposed is harsh and excessive. Based on our review of the record, we agree. Defendant has a minimal criminal history, consisting of a few minor drug and weapons convictions, and the crimes at issue do not appear to be part of an ongoing course of criminal conduct. Rather, the crimes at issue were apparently fueled by defendant's need for cash to support a drug habit, and he entered the subject residence by use of a key he obtained when he worked for the victims. Notably, defendant did not carry a weapon nor exhibit violent behavior while carrying out the crimes, but slipped into the home while the victims were asleep. In view of the circumstances, and considering the lengthy sentence imposed by County Court for the type of criminal conduct at issue, we choose to exercise our interest of justice jurisdiction and reduce the sentence accordingly (see CPL 470.15 [6] [b]; see e.g. People v Suhalla, 97 AD2d 857, 858 [1983]; compare People v Colantonia, 277 AD2d 498, 501 [2000], lv denied 96 NY2d 781 [2001]). Therefore, the sentence imposed for burglary in the second degree under count 4 of the indictment shall run concurrently with the sentences imposed for burglary in the second degree under counts 1, 2, and 3 of the indictment, instead of consecutively, and the sentences for the remaining counts shall remain unaffected so that the aggregate term of imprisonment imposed upon defendant is 101/2 years, to be followed by five years of postrelease supervision.

Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur.

0RDERED that the judgment is modified, as a matter of discretion in the interest of justice, by directing that defendant's sentence for burglary in the second degree under count 4 of the indictment shall run concurrently with the sentences for burglary in the second degree under counts 1, 2, and 3 of the indictment, and, as so modified, affirmed.

20091008

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