Opinion
No. 2019-06840 Ind. No. 618/18
01-12-2022
The People, etc., respondent, v. Richard Keith, also known as Keith Richard, appellant.
Patricia Pazner, New York, NY (Lynn W. L. Fahey of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Roni C. Piplani of counsel; Lorrie A. Zinno on the memorandum), for respondent.
Submitted - December 1, 2021
D68262 G/htr
Patricia Pazner, New York, NY (Lynn W. L. Fahey of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Roni C. Piplani of counsel; Lorrie A. Zinno on the memorandum), for respondent.
COLLEEN D. DUFFY, J.P. BETSY BARROS CHERYL E. CHAMBERS WILLIAM G. FORD, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Barry Kron, J.), imposed May 16, 2019, sentencing him to a determinate term of imprisonment of nine years, to be followed by a period of postrelease supervision of three years, upon his conviction of assault in the first degree, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed from a determinate term of imprisonment of nine years, to be followed by a period of postrelease supervision of three years, to a determinate term of imprisonment of seven years, to be followed by a period of postrelease supervision of three years.
The defendant's purported waiver of his right to appeal was invalid because, inter alia, the Supreme Court mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal or seeking any postconviction relief separate from the direct appeal, and the loss of attendant rights to counsel and poor person relief (see People v Shanks, 37 N.Y.3d 244; People v Thomas, 34 N.Y.3d 545, 560-564; People v Howard, 183 A.D.3d 640). Thus, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim (see People v Howard, 183 A.D.3d 640; People v Fuller, 163 A.D.3d 715).
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 981, 982-983, quoting People v Farrar, 52 N.Y.2d 302, 305; see Penal Law § 1.05; People v Diaz, 146 A.D.3d 803, 805-806; People v Suitte, 90 A.D.2d 80). In light of all of the facts and circumstances of this case the sentence imposed was excessive to the extent indicated herein (see People v Suitte, 90 A.D.2d 80).
DUFFY, J.P., BARROS, CHAMBERS and FORD, JJ., concur.