PEOPLE v. KERRINGER (2021)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Peter M. Forman, J.), rendered April 20, 2017, convicting him of attempted criminal possession of a controlled substance in the second degree, upon his plea of guilty, and sentencing him to a determinate term of imprisonment of 61/212 years plus 5 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 from a determinate term of imprisonment of 61/212 years plus 5 years of postrelease supervision to a determinate term of imprisonment of 4 years plus 5 years of postrelease supervision;  as so modified, the judgment is affirmed.

The defendant was arrested after he took a package containing heroin from an undercover officer while in a parking lot outside of a Walmart store.  The defendant, who was employed as a correction officer, became involved in the subject criminal transaction through his conversations with an inmate at the correctional facility where he worked.  The defendant pleaded guilty to attempted criminal possession of a controlled substance in the second degree, and was sentenced to a determinate term of imprisonment of 61/212 years plus 5 years of postrelease supervision.

“An intermediate appellate 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” (People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675;  see CPL 470.15[6][b];  People v. Thompson, 60 N.Y.2d 513, 519, 470 N.Y.S.2d 551, 458 N.E.2d 1228).  “Our sentencing review power ‘may be exercised, if the interest of justice warrants, without deference to the sentencing court’ ” (People v. Kordish, 140 A.D.3d 981, 982, 33 N.Y.S.3d 434 [emphasis omitted], quoting People v. Delgado, 80 N.Y.2d at 783, 587 N.Y.S.2d 271, 599 N.E.2d 675).  In considering whether a sentence is unduly harsh or severe under the circumstances (see CPL 470.15[6][b]), “we exercise our discretion giving consideration to, ‘among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation, and deterrence’ ” (People v. Kordish, 140 A.D.3d at 982–983, 33 N.Y.S.3d 434, quoting People v. Farrar, 52 N.Y.2d 302, 305, 437 N.Y.S.2d 961, 419 N.E.2d 864;  see Penal Law § 1.05;  People v. Diaz, 146 A.D.3d 803, 805–806, 46 N.Y.S.3d 627).

Here, the defendant's criminal conduct at 35 years of age was aberrational, as he had no prior criminal history.  Upon being arrested, the defendant took responsibility for his criminal conduct, and expressed remorse.  He pleaded guilty and has continued to express remorse throughout the judicial process.  The defendant submitted numerous letters to the County Court showing his strong community ties, and the presentence investigation report shows that the defendant provides financial support to his parents, who have health issues.  While we agree with the sentencing court that, given the defendant's employment as a correction officer, the deterrence factor militates in favor of imposing a harsh sentence in excess of the minimum, the sentence imposed was unduly harsh and severe under the circumstances.  Based upon our review of all of the relevant factors, we exercise our discretion in the interest of justice and reduce the sentence to the extent indicated.

We respectfully dissent and vote to affirm the sentence.

The sentencing court was rightly troubled that the defendant took an oath as a correction officer and then violated that public trust when an inmate, over whom the defendant had authority, brokered his participation in the criminal conduct at issue here.  At the site of the transaction, the defendant was handed a package and told it was heroin.  Upon learning the contents of the package, the defendant's response was not to back out of the arrangement, but instead he asked where he was to deliver the package.  The sentencing court noted the importance of deterrence and how that sentencing factor may be of particular relevance here to assure that there be consequences when officers violate their public oaths.  The sentencing court otherwise engaged in a fulsome and balanced consideration of the relevant facts and sentencing factors in imposing the bargained-for 6–1/212 year sentence that is in the mid-point of the permissible statutory range (see Penal Law § 70.71[2][b][ii]).  Accordingly, we conclude that the County Court providently exercised its discretion, as the sentence imposed is neither harsh nor excessive (see People v. Janvier, 186 A.D.3d 1247, 1249–1250, 130 N.Y.S.3d 486;  People v. Suitte, 90 A.D.2d 80, 86, 455 N.Y.S.2d 675).

BARROS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.