Opinion
1019 KA 17-01906
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Eric L. RUISE, Defendant-appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Monroe County, for resentencing.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the second degree ( Penal Law §§ 110.00, 265.03 [3] ), defendant contends that Supreme Court failed to exercise its discretion at sentencing. Although we note that defendant waived his right to appeal, there is no reason for us to determine whether that waiver is valid inasmuch as defendant's contention on appeal would survive even a valid waiver of the right to appeal (see People v. Stith , 30 A.D.3d 966, 966-967, 817 N.Y.S.2d 481 [4th Dept. 2006] ; People v. Gathers , 9 A.D.3d 912, 912, 779 N.Y.S.2d 706 [4th Dept. 2004], lv denied 3 N.Y.3d 674, 784 N.Y.S.2d 13, 817 N.E.2d 831 [2004] ; see also People v. Seaberg , 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ).
We agree with defendant that the court failed to exercise its discretion at sentencing. "[T]he sentencing discretion is a matter committed to the exercise of the court's discretion ... made only after careful consideration of all facts available at the time of sentencing" ( People v. Farrar , 52 N.Y.2d 302, 305, 437 N.Y.S.2d 961, 419 N.E.2d 864 [1981] ; see People v. Dowdell , 35 A.D.3d 1278, 1280, 825 N.Y.S.2d 865 [4th Dept. 2006], lv denied 8 N.Y.3d 921, 834 N.Y.S.2d 512, 866 N.E.2d 458 [2007] ). Due consideration should be "given 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" ( Farrar , 52 N.Y.2d at 305, 437 N.Y.S.2d 961, 419 N.E.2d 864 ; see People v. Dupont , 164 A.D.3d 1649, 1650, 84 N.Y.S.3d 648 [4th Dept. 2018] ).
Here, the court initially imposed a sentence of interim probation and advised defendant that, if he violated the terms of interim probation, the court would impose a term of 4 ½ years' incarceration with 3 years' postrelease supervision. When defendant violated the terms of interim probation, the court informed defendant at sentencing that it would not consider a lesser sentence because "your word is your word. That was the deal. I don't think that would speak well for the program nor would it speak well of me ... I'd lose confidence in myself." The court further stated that "[w]e made an agreement, we made a deal ... I'm going to abide by that deal." The sentencing transcript is devoid of any indication that the court considered the crime charged, defendant's circumstances, or the purpose of the penal sanction (see People v. Knorr , 186 A.D.3d 1090, 1091-1092, 127 N.Y.S.3d 373 [4th Dept. 2020] ; cf. People v. Clause , 167 A.D.3d 1532, 1532-1533, 90 N.Y.S.3d 441 [4th Dept. 2018] ). Nor is there any indication that the court considered the presentence report, which was prepared after the plea. We conclude that "the sentencing transcript, read in its entirety, does not reflect that the court conducted the requisite discretionary analysis" ( Knorr , 186 A.D.3d at 1091-1092, 127 N.Y.S.3d 373 ). We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court for resentencing.