PEOPLE v. MURRAY (2018)

MEMORANDUM AND ORDER

Defendant was convicted upon a jury verdict of grand larceny in the second degree (Penal Law § 155.40[1] ) and 13 counts of criminal possession of a forged instrument in the second degree (§ 170.25), arising from him having stolen money from his mother-in-law while he was managing her finances.

We reject defendant's contention that the imposition of consecutive sentences for 3 of the 13 counts of criminal possession of a forged instrument violated Penal Law § 70.25(2).  Defendant committed 13 distinct acts that formed the basis for those counts, and thus County Court was authorized to impose consecutive sentences for counts 8, 16, and 17 of the indictment (see People v. Day, 73 N.Y.2d 208, 210–211, 538 N.Y.S.2d 785, 535 N.E.2d 1325 [1989];  People v. Boyzuck, 72 A.D.3d 1530, 1530, 900 N.Y.S.2d 530 [4th Dept. 2010] ).

We also reject defendant's contention that the sentence was imposed as punishment for rejecting previous plea offers, inasmuch as there is no evidence in the record that defendant was given a lengthier sentence solely as punishment for exercising his right to a trial (see People v. Pope, 141 A.D.3d 1111, 1112, 33 N.Y.S.3d 812 [4th Dept. 2016], lv denied 29 N.Y.3d 951, 54 N.Y.S.3d 382, 76 N.E.3d 1085 [2017];  People v. Aikey, 94 A.D.3d 1485, 1486, 943 N.Y.S.2d 702 [4th Dept. 2012], lv denied 19 N.Y.3d 956, 950 N.Y.S.2d 108, 973 N.E.2d 206 [2012] ).

However, we agree with defendant that the sentence imposed, with an aggregate minimum of six years and an aggregate maximum of 18 years, is unduly harsh and severe.  This Court's “ ‘sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court’ ” (People v. Meacham, 151 A.D.3d 1666, 1670, 57 N.Y.S.3d 279 [4th Dept. 2017], lv denied 30 N.Y.3d 981, 67 N.Y.S.3d 584, 89 N.E.3d 1264 [2017], quoting People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675 [1992] ).  We conclude that a reduction in the sentence is appropriate and, as a matter of discretion in the interest of justice, we modify the judgment by reducing the sentence imposed for the count of grand larceny in the second degree to an indeterminate term of incarceration of 3 to 9 years (see Penal Law § 70.00 [3][b] ), and by directing that the terms of imprisonment imposed on counts 8, 16 and 17 shall run concurrently with each other (see generally CPL 470.20[6];  People v. Johnson, 136 A.D.3d 1417, 1418, 25 N.Y.S.3d 510 [4th Dept. 2016], lv denied 27 N.Y.3d 1134, 39 N.Y.S.3d 116, 61 N.E.3d 515 [2016] ).

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence imposed for grand larceny in the second degree to an indeterminate term of incarceration of 3 to 9 years and by directing that the terms of imprisonment imposed on counts 8, 16 and 17 shall run concurrently with each other and as modified the judgment is affirmed.

Memorandum: