Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), for respondent.
Andrias, J.P., Sweeny, Catterson, Moskowitz, Manzanet-Daniels, JJ.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered November 23, 2009, convicting defendant, upon his plea of guilty, of burglary in the third degree (three counts), and sentencing him, as a second felony offender, to two concurrent terms of 3 to 6 years, to run consecutively with another term of 3 to 6 years, modified, as a matter of discretion in the interest of justice, to the extent of directing that all of the sentences run concurrently with each other, and otherwise affirmed.
The Appellate Division has "broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range" (People v Delgado, 80 N.Y.2d 780, 783 ). "We may substitute our own discretion even where a trial court has not abused its discretion" (People v Edwards, 37 A.D.3d 289, 290 [1st Dept 2007], lv denied 9 N.Y.3d 843 ) and may reduce a sentence in the interests of justice, taking into account factors such as a defendant's age, physical and mental health, and remorse (see People v Ehrlich, 176 A.D.2d 203, 204 [1st Dept 1991]).
Defendant is a 61-year-old Vietnam veteran, who once had a successful business and stable family life. His decline, marked by business failure, family dissolution and larceny, has been fueled by drug and alcohol abuse. Although his criminal record is extensive, his offenses have been nonviolent, with the instant charges stemming from commercial burglaries.
Considering the nonviolent nature of his criminal conduct, his age and poor health (Crohn's disease, epilepsy, and asthma), and his expressions of remorse, defendant's aggregate sentence of 6 to 12 years warrants modification to the extent of running the sentences imposed under all three counts concurrently with each other (see People v Solomon, 78 A.D.3d 521 [1st Dept 2010], lv denied 16 N.Y.3d 863 ; People v Schonfeld, 68 A.D.3d 449 [1st Dept 2009]; People v Lakatosz, 59 A.D.3d 813 [3d Dept 2009], lv denied 12 N.Y.3d 917 ; People v Ostrow, 165 A.D.2d 719 [1st Dept 1990]; People v Harrison, 120 A.D.2d 358 , lv denied 68 N.Y.2d 668 [1st Dept 1986]). This will result in an aggregate sentence of 3 to 6 years.
All concur except Sweeny, J. who dissents in a memorandum as follows:
SWEENY, J. (dissenting)
Since the sentence imposed was neither harsh, severe, nor one that should be reduced in the interests of justice, I must dissent.
The facts of this case are not in dispute. On five separate occasions between April 16 and July 8, 2007, the defendant burglarized three different commercial businesses and stole over $1, 000 in electronic equipment. He was subsequently charged in a 15-count indictment with nine counts of burglary in the third degree, four counts of petit larceny, and one count each of possession of burglar's tools and grand larceny in the fourth degree. Ultimately, defendant entered a guilty plea to three counts of burglary in the third degree in full satisfaction of the indictment, with a sentence commitment of two concurrent terms of 3 to 6 years, to run consecutive with one term of 3 to 6 years. Defendant, who was potentially a discretionary persistent felony offender, was promised to be sentenced as a second felony offender. Sentence was imposed as promised.
The sole basis for this appeal is defendant's claim that his sentence was excessive. It is uncontroverted that this defendant entered into a negotiated plea and agreed-upon sentence. He did so with the advice of counsel and with the approval of an experienced judge. He does not challenge the validity of those proceedings. He admitted to the second felony offender statement. There is no claim that the plea was anything other than voluntarily, knowingly and freely entered into. Nor is there any claim that defendant was anything but fully competent when he entered his plea. Moreover, defendant is no stranger to the criminal justice system. In fact, he was on parole for a 2006 conviction of burglary in the third degree when he committed these crimes. By defendant's own admission in his brief, he has seven felony convictions, including a conviction for the violent felony of attempted burglary in the second degree, as well as five misdemeanor convictions. The People aver, without contradiction, that he has a history of bench warrants and parole violations and appears to be a multi-state offender with a criminal record in Florida, California, New Mexico, Tennessee, Louisiana and the District of Columbia. Notably, this record begins in 1972, well in advance of the dissolution of his marriage in 1984 and subsequent loss of his business, both of which he blames for his present difficulties. He does not refute the People's allegation that he refused to speak with the probation department for his presentence interview. Nevertheless, he argues that his medical issues, prior history of substance abuse and age are factors that warrant a reduction of his sentence in the interest of justice.
While I agree with the majority that we have "broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances" (People v Delgado, 80 N.Y.2d 780, 783 ), our discretion is not unfettered and must be sparingly applied. We have long held that a reviewing court should rarely reduce a sentence that is the result of a negotiated plea (People v Lopez, 190 A.D.2d 545 [1st Dept 1993]). "Having received the benefit of his bargain, [a] defendant should be bound by its terms" (People v Cipullo, 171 A.D.2d 432, 432 [1st Dept 1991], [internal quotations omitted], lv denied 77 N.Y.2d 993 ; People v Vera, 194 A.D.2d 404, 404 [1st Dept 1993]; People v Watson, 199 A.D.2d 184 [1st Dept 1993]; lv denied, 83 N.Y.2d 859 ). Furthermore, the sentencing judge is in the best position to determine the appropriate sentence and his or her action should not be disturbed unless there is a clear abuse of discretion (People v Sheppard, 273 A.D.2d 498, 500 [3d Dept 2000], lv denied 95 N.Y.2d 908 ).
Here, defendant concedes in his brief that "the aggregate sentence of six to 12 years... cannot properly be termed an abuse of discretion.'" Nor does he allege any infirmity with respect to the proceedings in this case. He instead argues that his ...