PEOPLE v. SMITH (2008)

Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.), rendered June 8, 2007, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree.

Following a jury trial, defendant was found guilty of criminal sale of a controlled substance in the third degree, and sentenced to 4 1/212 years in prison followed by two years of postrelease supervision.   Defendant now appeals, contending that the sentence imposed was harsh and excessive.

 While the prison term defendant received was greater than that apparently offered during the course of failed plea negotiations or sought by the People at sentencing, there is nothing in the record to suggest that defendant received a greater sentence in retaliation for electing to proceed to trial (see People v. Torra, 309 A.D.2d 1074, 1076, 766 N.Y.S.2d 912 [2003], lv. denied 1 N.Y.3d 581, 775 N.Y.S.2d 797, 807 N.E.2d 910 [2003] ).   The record does, however, reflect that defendant received an additional six months in prison based solely upon what County Court apparently deemed to be an interrupting remark made by defendant during sentencing.   Under such circumstances, we agree that the sentence imposed is harsh and excessive and, as a matter of discretion in the interest of justice, reduce defendant's sentence to four years in prison followed by two years of postrelease supervision.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed to four years and, as so modified, affirmed.