THE APPELLATE DIVISION REDUCED DEFENDANT’S SENTENCE, IN PART BECAUSE THE SENTENCING JUDGE MAY HAVE BEEN REACTING TO CRITICISM OF HOW THE TRIAL WAS HANDLED (SECOND DEPT).

The Second Department, reducing defendant’s sentence, over a dissent, determined the sentencing judge reacted to criticism of how the trial was conducted:

The Supreme Court imposed the maximum period of imprisonment of 4½ years’ incarceration …  and 2 years postrelease supervision … , apparently based upon the defendant’s claim during the presentence interview that the judge, the prosecutor, and the jury showed favoritism to the arresting officer, and the defendant did not like how the trial was conducted. At sentencing, when the court asked the defendant to explain that statement, the defendant stated that, although he thought the jury showed “favoritism,” he wanted “to move on from this” and he”learned [his] lesson.” The court, in response, stated that although “[o]bviously this is not the crime of the century,” and “you’re entitled to your opinion,” that opinion demonstrated a “willingness not to accept any responsibility.”

“An intermediate appellate court has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances” … . Contrary to the conclusion of our dissenting colleague, that power “may be exercised, if the interest of justice warrants, without deference to the sentence court” … , especially where, as here, the sentencing court acted, at least in part, out of umbrage to criticism as to how the trial was conducted. In this case, considering the nonviolent nature of the crime involving a relatively small amount of drugs in the defendant’s possession, the defendant’s reported substance abuse issues, and the fact that the defendant is married and has a young child, the sentence was excessive to the extent indicated herein … . People v Morales, 2020 NY Slip Op 07919, Second Dept 12-23-20