PEOPLE v. KIBLER (2020)

MEMORANDUM AND ORDER

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 to a determinate term of imprisonment of five years and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2] [b]) and sentencing him to a determinate term of imprisonment of seven years, followed by a period of three years of postrelease supervision.

Preliminarily, we note that even if defendant executed a valid waiver of the right to appeal at the underlying plea proceeding, it would not encompass his challenge to the severity of the sentence imposed following his violation of probation (see People v. Giuliano, 151 A.D.3d 1958, 1959, 54 N.Y.S.3d 904 [4th Dept. 2017], lv denied 30 N.Y.3d 949, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017]; People v. Tedesco, 143 A.D.3d 1279, 1279, 38 N.Y.S.3d 499 [4th Dept. 2016], lv denied 28 N.Y.3d 1075, 47 N.Y.S.3d 234, 69 N.E.3d 1030 [2016]). Contrary to the People's contention, defendant's challenge to the severity of the sentence is not subject to a preservation requirement (see CPL 470.15 [3] [c]; [6] [b]; People v. Williams, 120 A.D.3d 721, 724, 991 N.Y.S.2d 427 [2d Dept. 2014], lv denied 25 N.Y.3d 1078, 12 N.Y.S.3d 630, 34 N.E.3d 381 [2015]). “A claim that a sentence is excessive is, by definition (see CPL 470.15 [6] [b]), addressed to this Court's interest of justice jurisdiction, and does not need to be preserved as a question of law (cf. CPL 470.05 [2]; CPL 470.15 [4])” (Williams, 120 A.D.3d at 724, 991 N.Y.S.2d 427). Contrary to the People's further contention, in reviewing that challenge, “it is inappropriate for this Court to address whether the sentencing court abused its discretion” (People v. Garcia-Gual, 67 A.D.3d 1356, 1356, 887 N.Y.S.2d 914 [4th Dept. 2009], lv denied 14 N.Y.3d 771, 898 N.Y.S.2d 102, 925 N.E.2d 107 [2010]; see People v. Parker, 137 A.D.3d 1625, 1626, 27 N.Y.S.3d 305 [4th Dept. 2016]; see generally People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675 [1992]). Rather, this 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 such “sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court” (Delgado, 80 N.Y.2d at 783, 587 N.Y.S.2d 271, 599 N.E.2d 675). We agree with defendant that the sentence is unduly harsh and severe under the circumstances of this case, and we therefore modify the sentence as a matter of discretion in the interest of justice to a determinate term of imprisonment of five years (see generally CPL 470.15 [6] [b]), to be followed by the three years of postrelease supervision imposed by County Court.