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The People of the State of New York v. Berry Barnes

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


July 28, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
BERRY BARNES, JR.,
APPELLANT.

Appeal from judgments of the District Court of Suffolk County, First District (Stephen M. Behar, J.), rendered February 8, 2010. The judgments, insofar as appealed from as limited by the brief, upon convicting defendant, upon his pleas of guilty, of reckless endangerment in the second degree and resisting arrest, sentenced him to concurrent terms of three years' probation with 60 days' incarceration as conditions thereof.

People v Barnes (Berry)

Decided on July 28, 2011

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: IANNACCI, J.P., NICOLAI and MOLIA, JJ

ORDERED that the judgments of conviction, insofar as appealed from, are affirmed.

Defendant was charged with misdemeanors and a violation following a violent encounter with police officers who had issued defendant a simplified traffic information. Represented by counsel, defendant entered into a negotiated plea agreement whereby the informations alleging menacing in the third degree (Penal Law § 120.15) and harassment in the second degree (Penal Law § 240.26 [1]) would be dismissed upon defendant's guilty plea to the remaining informations, alleging reckless endangerment in the second degree (Penal Law § 120.20) and resisting arrest (Penal Law § 205.30), and defendant would be sentenced to concurrent terms of three years' probation with 60 days' incarceration as conditions thereof. Defendant entered his pleas and was sentenced according to the terms of the plea agreement.

Defendant, who has served the periods of incarceration, now asks this court to invoke its discretionary authority, in the interest of justice, to reduce his terms of probation as unduly harsh and severe (CPL 470.15 [6] [b]; People v Delgado, 80 NY2d 780, 783 [1992]). Normally, a defendant whose sentence is consistent with the terms of a negotiated plea and sentence agreement may not be heard to complain that the sentence is excessive (People v Torres, 69 AD3d 886, 887 [2010]; People v Kazepis, 101 AD2d 816, 817 [1984]; People v Slakas, 30 Misc 3d 136[A], 2010 NY Slip Op 52378[U] [App Term, 9th & 10th Jud Dists 2010]), particularly where, as here, by virtue of the plea, the defendant significantly limited his sentencing exposure from what could have been imposed upon a conviction after trial (e.g. People v Torres, 81 AD3d 995 [2011]). In such circumstances, where a defendant's appeal is directed solely to an appellate court's "broad, plenary power" to modify sentences (People v Delgado, 80 NY2d at 783), such intervention is appropriate only where it can be shown that extraordinary circumstances exist warranting such relief (People v Vega, 73 AD3d 1218, 1219 [2010]; People v Bussey, 67 AD3d 819 [2009]; People v Rashad M., 16 Misc 3d 128[A], 2007 NY Slip Op 51272[U] [App Term, 9th & 10th Jud Dists 2007]). Here, defendant's criminal history, which includes several felony convictions, some for violent offenses, suggests that encouraging defendant's capacity for peaceable, law-abiding conduct remains a salutary function of the relevant conditions of probation. On this record, we cannot find that there exist such extraordinary circumstances as would warrant a reduction in the terms of defendant's probation. It is noted that defendant retains the right to apply to the District Court to modify the conditions of his probation (CPL 410.20 [1]; People v Rozario, 20 Misc 3d 76, 84 [App Term, 9th & 10th Jud Dists 2008]).

Accordingly, the judgments of conviction, insofar as appealed from, are affirmed. Iannacci, J.P., Nicolai and Molia, JJ., concur.

Decision Date: July 28, 2011

20110728

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