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