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ALTHOUGH THE PERSISTENT FELONY OFFENDER STATUS WAS AUTHORIZED AND LEGAL, THE APPELLATE DIVISION EXERCISED ITS DISCRETION TO FIND DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT FELONY OFFENDER AND REDUCED HIS SENTENCE (FOURTH DEPT).

The Fourth Department, exercising its discretion, determined, although authorized and legal, defendant should not have been sentenced as a persistent felony offender. The Fourth Department reduced his sentence. The court noted that defendant had been offered a much shorter sentence as part of a plea bargain:

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” … . “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” … . …

Despite defendant’s frequent involvement with law enforcement, he has only two prior felony convictions: one in 1981 for burglary in the second degree and one in 2002 for driving while intoxicated. Moreover, a sentence of 20 years to life is a particularly harsh penalty in light of the People’s final pretrial plea offer of 6 to 9 years’ incarceration. Thus, as a matter of discretion in the interest of justice, we modify the judgment by vacating the finding that defendant is a persistent felony offender and we hereby modify the sentences imposed and sentence defendant as a second felony offender by reducing the sentence imposed for arson in the third degree under count one of the indictment to an indeterminate term of incarceration of 3 to 6 years and reducing the sentences imposed for menacing a police officer or peace officer under counts two, four, five, and seven of the indictment to determinate terms of incarceration of 7 years followed by 5 years of postrelease supervision. People v Garno, 2020 NY Slip Op 03311, Fourth Dept 6-12-20

 

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ALTHOUGH THE VICTIM, AFTER IDENTIFYING DEFENDANT IN A PHOTO ARRAY, ASKED TO SEE A SECOND PHOTO ARRAY, HER IDENTIFICATION OF THE DEFENDANT WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE; THERE WAS A STRONG DISSENT (FOURTH DEPT). ​
THE VICTIM IN THIS KIDNAPPING CASE ASKED THE DEFENDANT IF SHE COULD GO WITH HIM TO FLORIDA; THE JURY SHOULD HAVE BEEN INSTRUCTED THAT THE INTENT TO VIOLATE OR ABUSE THE VICTIM MUST HAVE EXISTED FOR MORE THAN 12 HOURS, A NEW TRIAL WAS ORDERED ON THAT GROUND; BOTH THE CONCURRENCE AND THE DISSENT ARGUED THERE HAD BEEN NO RESTRAINT WITHIN THE MEANING OF THE KIDNAPPING STATUTE (FOURTH DEPT).
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