PEOPLE v. JACKSON

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. Samuel JACKSON, Appellant.

Decided: December 31, 1997

Before LAWTON, J.P., and HAYES, WISNER, CALLAHAN and BOEHM, JJ. Michelle Cohen, Utica, for Appellant. Michael A. Arcuri by Michael Coluzza, Utica, for Respondent.

County Court abused its discretion in sentencing defendant to an additional 61/212 to 13 years in prison because he failed to appear for sentencing after pleading guilty to criminally using drug paraphernalia in the second degree (Penal Law § 220.50[2] ) and two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1], [12] ).  When it accepted the plea and released defendant from custody pending sentencing, the court informed defendant that it would impose a term of incarceration of 121/212 to 25 years if defendant did not return, and it does not appear that the court gave due consideration to the appropriate sentencing factors when it fulfilled that commitment (see, People v. Nicholson, 237 A.D.2d 973, 654 N.Y.S.2d 906, lv. denied 90 N.Y.2d 908, 663 N.Y.S.2d 520, 686 N.E.2d 232).   The additional prison time based upon defendant's failure to appear exceeds the sentence for bail jumping in the first degree (Penal Law § 215.57).   In our view, the sentence of 121/212 to 25 years imposed upon the conviction of two counts of criminal possession of a controlled substance in the third degree is unduly harsh.   We exercise our discretion in the interest of justice to reduce the sentence on those counts to concurrent indeterminate terms of incarceration of 7 to 14 years.   We have examined defendant's remaining contentions and conclude that they are without merit.

Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed.

MEMORANDUM: