Opinion
1133 KA 14-00838
11-13-2015
The PEOPLE of the State of New York, Respondent, v. Johnny Q. RUSSELL, Defendant–Appellant.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant.
Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, WHALEN, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:
Defendant appeals from a judgment revoking the sentence of probation imposed upon his conviction of assault in the second degree (Penal Law § 120.05 [2 ] ) and sentencing him to a determinate term of incarceration of four years, followed by a period of three years of postrelease supervision. As the People correctly concede, defendant's waiver of the right to appeal at the plea proceeding encompassed the original sentence of probation, but did not encompass the sentence of incarceration imposed following his violation of probation (see People v. Johnson, 77 A.D.3d 1441, 1442, 907 N.Y.S.2d 899, lv. denied 15 N.Y.3d 953, 917 N.Y.S.2d 113, 942 N.E.2d 324 ).
We agree with defendant that the sentence of incarceration is unduly harsh and severe under the circumstances of this case, and we therefore modify the sentence as a matter of discretion in the interest of justice to a determinate term of imprisonment of two years, followed by a period of three years of postrelease supervision (see generally CPL 470.15[6][b] ).
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 a determinate term of two years, and as modified the judgment is affirmed.