Opinion
502 KA 16–00920
05-04-2018
The PEOPLE of the State of New York, Respondent, v. Charles DIMON, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
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 imposed to an indeterminate term of imprisonment of 1 to 3 years and as modified the judgment is affirmed.Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of burglary in the third degree ( Penal Law § 140.20 ). Preliminarily, we agree with defendant that he did not validly waive his right to appeal (see People v. Elioff, 152 A.D.3d 1158, 1159, 54 N.Y.S.3d 915 [4th Dept. 2017], lv denied 29 N.Y.3d 1126, 64 N.Y.S.3d 676, 86 N.E.3d 568 [2017] ; People v. Homer, 151 A.D.3d 1949, 1949, 57 N.Y.S.3d 328 [4th Dept. 2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ). We further agree with defendant that the 2–to–6–year term of imprisonment imposed by County Court is unduly harsh and severe, and we therefore modify the judgment as a matter of discretion in the interest of justice by reducing the sentence to a term of imprisonment of 1 to 3 years (see generally 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] ).