Sentence Reduced In Interest of Justice Despite Extensive Criminal Record
The Second Department, over a partial dissent, reduced the defendant’s sentence in the interest of justice based upon the facts of the offense, the defendant’s mental health issues, and the defendant’s efforts to improve his life:
The evidence at trial showed that, although the defendant entered his neighbor’s home unlawfully with the intent to commit a crime therein, no items were taken from the home, and no one was threatened or physically harmed.
… [T]he defendant has been diagnosed with bipolar disorder, a mental illness that runs in his family, and has also been diagnosed with major depression and has struggled with drug addiction. Following the defendant’s release from prison in 2009, he made positive strides in his life by participating in outpatient mental health counseling and taking medication, and enrolling in college full-time. He performed well academically, was working toward a bachelor’s degree, and had plans to pursue a master’s degree, and a career in youth counseling. However, the defendant experienced a setback in July 2011, one month before the instant offenses were committed, when his 28-year-old son was shot and killed, causing his depression to worsen. The instant offenses were committed during this period of his life. Nonetheless, the defendant had been living in the community for two years without incident before committing the instant offenses. While we agree with our dissenting colleague that the defendant’s criminal history is extensive, such criminal history is adequately taken into consideration by the Penal Law provisions providing increased sentences for persistent violent felony offenders (see Penal Law § 70.08[2], [3]). Based on the circumstances of the defendant’s commission of burglary in the second degree and his efforts at rehabilitation, a sentence of imprisonment longer than the statutory minimum of 16 years to life is unduly harsh and excessive, and we modify the sentence accordingly … . People v Howard, 2014 NY Slip Op 06105, 2nd Dept 9-10-14