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SENTENCE DEEMED UNDULY HARSH (FOURTH DEPT).

The Fourth Department reduced defendant’s sentence, finding it unduly harsh. The defendant was several hours late in surrendering to the jail and the sentence initially promised was increased. The Fourth Department imposed the lesser sentence initially promised:

… [T]his 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 we may exercise that power, “if the interest of justice warrants, without deference to the sentencing court” … . Here, the court initially promised to sentence defendant to a concurrent eight-year determinate term of imprisonment on each count of the indictment and agreed to release him until 9:00 a.m. on the ensuing Monday to allow him to attend his mother’s wedding on the intervening weekend. Defendant accepted the plea offer and was released as promised but did not surrender himself to the jail until 5:30 p.m. on the appointed date. Nevertheless, the record establishes that he surrendered voluntarily and that he called the jail prior to the appointed time and reported that he was having transportation difficulties. In addition, the record establishes that defendant has a lengthy record, but no violent felonies, and that he had not been arrested in the 10 years preceding these incidents, which involve sale and possession of small amounts of cocaine. Under these circumstances, as a matter of discretion in the interest of justice, we modify the judgment by reducing the sentence of imprisonment imposed under each count of the indictment to a determinate term of eight years, to be followed by the three years of postrelease supervision imposed by the court, and directing that the sentences run concurrently with each other. People v Brinson, 2021 NY Slip Op 01648, Fourth Dept 3-19-21

 

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PETITIONER SOUGHT ATTORNEY’S FEES AS THE PREVAILING PARTY PURSUANT TO... SENTENCE DEEMED UNDULY HARSH (FOURTH DEPT).