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WAIVER OF APPEAL OF THE UNDERLYING OFFENSE DOES NOT PRECLUDE APPEAL OF THE SENTENCE IMPOSED FOR A SUBSEQUENT VIOLATION OF PROBATION; SENTENCE DEEMED HARSH AND EXCESSIVE (FOURTH DEPT).

The Fourth Department determined defendant’s sentence was harsh and excessive and noted a waiver of appeal for the underlying offense does not apply to an appeal of the sentence imposed for a subsequent violation of probation:

… [A]s defendant contends and the People correctly concede, even if defendant executed a valid waiver of the right to appeal at the underlying plea proceeding, it would not encompass her challenge to the severity of the sentence imposed following her violation of probation … . We agree with defendant that the sentence is unduly harsh and severe. In light of defendant’s young age, minimal criminal history, and prior efforts to address her substance abuse issues, as well as the nonviolent nature of the underlying crimes and the relatively minor infractions for which she was discharged from her treatment program thereby resulting in her violation of probation, we modify the judgment as a matter of discretion in the interest of justice … by reducing the sentence on each count to a determinate term of imprisonment of three years, to be followed by the two years of postrelease supervision imposed by County Court, with the sentences remaining concurrent. People v Griffin, 2020 NY Slip Op 05645, Fourth Dept 10-9-20

 

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