You are here: / / WAIVER OF APPEAL OF THE UNDERLYING PLEA DOES NOT PROHIBIT APPEAL OF THE...
,

WAIVER OF APPEAL OF THE UNDERLYING PLEA DOES NOT PROHIBIT APPEAL OF THE SENTENCE FOR A SUBSEQUENT VIOLATION OF PROBATION; NO PRESERVATION REQUIREMENT; APPELLATE COURT HAS POWER TO MODIFY A LEGAL SENTENCE (FOURTH DEPT).

The Fourth Department, reducing defendant’s sentence, noted that a waiver of appeal at the underlying plea proceeding did not prohibit the appeal of the severity of the sentence for a subsequent violation of probation. The court further noted there is no preservation requirement for the appeal of an excessive sentence:

… [E]ven if defendant executed a valid waiver of the right to appeal at the underlying plea proceeding, it would not encompass his challenge to the severity of the sentence imposed following his violation of probation … . Contrary to the People’s contention, defendant’s challenge to the severity of the sentence is not subject to a preservation requirement … . “A claim that a sentence is excessive is, by definition … , addressed to this Court’s interest of justice jurisdiction, and does not need to be preserved as a question of law … . Contrary to the People’s further contention, in reviewing that challenge, “it is inappropriate for this Court to address whether the sentencing court abused its discretion” … . Rather, this Court “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,” and such “sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court” … . We agree with defendant that the sentence is unduly harsh and severe under the circumstances of this case, and we therefore modify the sentence as a matter of discretion in the interest of justice to a determinate term of imprisonment of five years … . People v Kibler, 2020 NY Slip Op 05365, Fourth Dept 10-2-20

 

You might also like
Determination Whether Defendant Is a Youthful Offender Is Mandatory for Every Eligible Youth
ENGAGING IN COUNSELING SHOULD NOT BE A CONDITION OF VISITATION; THE COURT SHOULD NOT DELEGATE ITS AUTHORITY TO DETERMINE IF AND WHEN VISITATION SHOULD OCCUR TO A COUNSELOR (FOURTH DEPT). ​
CIVIL CONTEMPT AIMS TO COMPENSATE THE OTHER PARTY FOR ANY LOSS ASSOCIATED WITH THE CONTEMPT (FAILURE TO COMPLY WITH A COURT ORDER); CRIMINAL CONTEMPT AIMS TO PUNISH; THEREFORE A $250 A DAY FINE, ALTHOUGH APPROPRIATE FOR CRIMINAL CONTEMPT, WAS NOT APPROPRIATE FOR THE CIVL CONTEMPT AT ISSUE HERE (FOURTH DEPT).
The Destruction of Decedent’s Body in a Trash Compactor Gave Rise to a Cause of Action for Loss of Sepulcher
STATEMENTS MADE IN CONNECTION WITH A HOSPITAL’S QUALITY ASSURANCE INVESTIGATION ARE PRIVILEGED PURSUANT TO THE EDUCATION LAW AND PUBLIC HEALTH LAW; THE STATEMENTS ARE NOT DISCOVERABLE IN THE MEDICAL MALPRACTICE ACTION (FOURTH DEPT).
Pedigree Question “Where Do You Reside,” Under the Circumstances, Was Designed to Elicit an Incriminating Response, the Answer, Therefore, Should Have Been Suppressed; New Trial on Possessory Counts Ordered
Appeal Waiver Invalid/Court Erroneously Told Defendant His Request for a Hearing on the Persistent Violent Felony Offender Tolling Calculations Violated the Plea Agreement—Matter Remitted for a Hearing
PEOPLE FAILED TO PROVE THE VICTIM-AGE AND TIME-PERIOD ELEMENTS OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD, CONVICTION REVERSED (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFAMATION CAUSE OF ACTION AGAINST DEFENDANT AND HIS EMPLOYER, UNDER A RESPONDEAT... THE APPEAL WAS HELD IN ABEYANCE AND THE MATTER WAS SENT BACK FOR A RECONSTRUCTION...