ALTHOUGH DEFENDANT MET THE CRITERIA FOR A PERSISTENT FELONY OFFENDER THE RESULTING SENTENCE WAS TOO HARSH; SENTENCE REDUCED BY THE APPELLATE DIVISION (FOURTH DEPT).

The Fourth Department determined that, although defendant met the criteria for a persistent felony offender, he should not have been sentenced as a persistent felony offense due to the nature of his prior offenses. His sentence was reduced from 15 to life to 9 to 18 years. Defendant had been offered 2 !/2 to 5 prior to trial:

… [T]he imposition of persistent felony offender status is unduly harsh and severe. The sentencing court’s determination to sentence a defendant as a persistent felony offender “cannot be held erroneous as a matter of law, unless [that] court acts arbitrarily or irrationally” … . Even where the sentencing court does not err as a matter of law in adjudicating a defendant to be a persistent felony offender, “[t]he Appellate Division, in its own discretion, may conclude that a persistent felony offender sentence is too harsh or otherwise improvident” … . “In this way, the Appellate Division can and should mitigate inappropriately severe applications of the statute” … . “A determination by the Appellate Division to vacate a harsh or severe persistent felony offender finding is authorized by CPL 470.20 (6), which grants the Appellate Division discretion to modify sentences in the interest of justice without deference to the sentencing court’ ” … . People v Brown, 2019 NY Slip Op 05454, Fourth Dept 7-5-19