Opinion
2012-11-16
The PEOPLE of the State of New York, Respondent, v. Timothy SISLER, Defendant–Appellant.
Edward P. Perlman, Conflict Defender, Lockport, for Defendant–Appellant. Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of Counsel), for Respondent.
Edward P. Perlman, Conflict Defender, Lockport, for Defendant–Appellant. Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree (Penal Law § 130.65 [3] ), defendant contends that County Court erred in imposing an enhanced sentence without affording him an opportunity to withdraw his plea. That contention is not preserved for our review because defendant did not object to the enhanced sentence, nor did he move to withdraw the plea or to vacate the judgment of conviction ( see People v. Sprague, 82 A.D.3d 1649, 1649, 919 N.Y.S.2d 433,lv. denied17 N.Y.3d 801, 929 N.Y.S.2d 110, 952 N.E.2d 1105;People v. Vaillant, 77 A.D.3d 1389, 1390, 908 N.Y.S.2d 798), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ). We agree with defendant, however, that the sentence of a determinate term of incarceration of seven years followed by a period of three years of postrelease supervision is unduly harsh and severe under the circumstances of this case. As a matter of discretion in the interest of justice ( seeCPL 470.15[6][b] ), we therefore modify the judgment by reducing the sentence to a determinate term of imprisonment of four years and a period of three years of postrelease supervision.
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 to a determinate term of imprisonment of four years and a period of postrelease supervision of three years and as modified the judgment is affirmed.