You are here: / / THE DISSENT IN THIS PERSISTENT VIOLENT FELONY OFFENDER CASE ARGUED THE...

THE DISSENT IN THIS PERSISTENT VIOLENT FELONY OFFENDER CASE ARGUED THE 34-YEAR SENTENCE FOR THE 34-YEAR-OLD DEFENDANT WAS HARSH AND EXCESSIVE, NOTING THAT THE BURGLARIES WERE IN THE DAYTIME WHEN NO ONE WAS HOME (SECOND DEPT).

The Second Department, over a dissent, determined the 34-year sentence for four counts of burglary and related offenses was not unduly harsh or excessive. The majority concluded that the schizophrenia and bipolar mood disorder diagnoses were self-reported and unsupported:

We … disagree with our dissenting colleague that a reduction in the defendant’s sentence is warranted due to the defendant’s mental health condition. While it is undisputed that the defendant qualified for some level of mental health services, and, as the trial testimony reflected, among other things, that the defendant’s former parole officer was assigned to parolees that had a mental health diagnosis, the nature and scope of the defendant’s mental health condition was never probed at trial or at sentencing. The diagnoses of schizophrenia and bipolar mood disorder were self-reported by the defendant to the Department of Probation, but no medical records were introduced to corroborate the defendant’s statements. Moreover, at sentencing, the People introduced an audio recording of a phone call made by the defendant … , while he was incarcerated during the pendency of this matter, in which he admitted to having previously lied about having auditory hallucinations in order to acquire supportive housing.

From the dissent:

The gravity of a defendant’s criminal conduct, a defendant’s extensive criminal history, and the need for societal protection are already taken into consideration by the Penal Law provisions providing enhanced sentences for persistent violent felony offenders … . Contrary to the determination of my colleagues, nothing in this record warranted a further enhancement of the already-enhanced minimum aggregate sentence of an indeterminate term of imprisonment of 16 years to life, followed by lifetime parole supervision.

The defendant committed daytime burglaries when no one was home, and stole items such as jewelry, fur coats, and electronics. No victim had any encounter with the defendant. Even without considering any other factors, an aggregate term of imprisonment of 34 years to life is grossly disproportionate to the harm caused by the defendant’s conduct. People v West, 2023 NY Slip Op 03932, Second Dept 7-26-23

Practice Point: Here the sentence was already enhanced by defendant’s persistent violent felony status when it was further enhanced by the sentencing court. The majority concluded the sentence was not harsh and excessive. The dissent disagreed, noting that all the burglaries took place in the daytime when no one was home.

 

You might also like
THE CONDITIONAL ORDER OF DISMISSAL DID NOT MEET THE REQUIREMENTS OF CPLR 3216 BECAUSE ISSUE WAS NEVER JOINED IN THIS FORECLOSURE ACTION; THE ACTION SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO PROSECUTE (SECOND DEPT).
AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT.
PLAINTIFF SUBMITTED INSUFFICIENT PROOF THAT THE NOTICE REQUIRED BY RPAPL 1304 AND THE MORTGAGE WAS PROVIDED TO DEFENDANTS; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Question of Fact Whether Plaintiff-Employee Indicated Employer’s Sexual Advances Were “Unwelcome”–Dismissal of Employment Discrimination Complaint Reversed
Employer Must Show Workers’ Compensation Board Approved a Settlement with the Plaintiff In Order to Be Entitled to Summary Judgment Dismissing Plaintiff ‘s Subsequent Damages Suit (Plaintiff-Employee Is Not Entitled to Both Workers’ Compensation Benefits and Damages But an Unapproved Settlement Is Not Binding)
THE MEANING OF ‘GROSS EARNED INCOME’ IN THE STIPULATION OF SETTLEMENT AFFECTED THE CALCULATION OF CHILD SUPPORT; THE TERM WAS AMBIGUOUS REQUIRING A HEARING TO DETERMINE THE INTENT OF THE PARTIES (SECOND DEPT).
IN A MED MAL ACTION, AN EXPERT’S AFFIRMATION WHICH IS NOT SUPPORTED BY THE RECORD WILL BE DEEMED “CONCLUSORY” AND WILL NOT SUPPORT SUMMARY JUDGMENT (SECOND DEPT).
SERVICE OF CLAIM BY REGULAR MAIL VIOLATED COURT OF CLAIMS ACT SECTION 11, CLAIM PROPERLY DISMISSED (SECOND 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

DESPITE MOTHER’S DEFAULT, CUSTODY SHOULD NOT HAVE BEEN AWARDED WITHOUT... A MOTION TO MODIFY THE CUSTODY PROVISIONS IN A SETTLEMENT AGREEMENT, WHERE THERE...