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
Plaintiff Entitled to Summary Judgment Against Third-Party Defendant Under Doctrine of Collateral Estoppel
SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED.
INSUFFICIENT EVIDENCE TO SUPPORT CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD, MOTHER TRANSPORTED DEAD BODY IN A CAR IN WHICH FOUR YEAR OLD DAUGHTER WAS RIDING, TWO JUSTICE DISSENT (FOURTH DEPT).
HEARING NECESSARY ON THAT ASPECT OF DEFENDANT’S MOTION TO VACATE THE JUDGMENT OF CONVICTION WHICH ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL, DEFENDANT ALLEGED DEFENSE COUNSEL TOLD THE JURY DEFENDANT WOULD TESTIFY WITHOUT FIRST CONSULTING WITH DEFENDANT (FOURTH DEPT).
EXTENSION OF TIME TO FILE A MOTION TO VACATE A TAX FORECLOSURE JUDGMENT SHOULD NOT HAVE BEEN GRANTED, CPLR 2004 DOES NOT APPLY TO TIME LIMITS SPECIFICALLY CALLED FOR IN THE REAL PROPERTY TAX LAW (RPTL) (FOURTH DEPT).
CONSECUTIVE SENTENCES WHICH AMOUNTED TO A LIFE SENTENCE WITHOUT PAROLE WERE NOT WARRANTED (FOURTH DEPT).
JURY INSTRUCTIONS ALLOWED CONSIDERATION OF A THEORY NOT ALLEGED IN THE INDICTMENT OR BILL OF PARTICULARS, CONVICTIONS REVERSED.
Knowledge of Dangerous Condition May Make Owner Liable Even Where Owner Exercises No Supervisory Control Over Contractor’s Operation.

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 © 2025 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...