Opinion
428 KA 19-00214
07-16-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ELIJAH CURTIS, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
Appeal from a judgment of the Onondaga County Court (James H. Cecile, A.J.), rendered November 13, 2018. The judgment convicted defendant upon a plea of guilty of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree, criminal possession of a controlled substance in the seventh degree and criminal possession of marihuana in the fifth degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]). The People correctly concede that defendant did not validly waive his right to appeal (see People v Clark, 178 A.D.3d 1409, 1410 [4th Dept 2019], lv denied 34 N.Y.3d 1157 [2020]; People v Coats, 158 A.D.3d 1296, 1297 [4th Dept 2018], lv denied 31 N.Y.3d 1080 [2018]). Contrary to defendant's contention, however, the sentence is not unduly harsh or severe. We are nevertheless "compelled to emphasize once again" that, contrary to the assertion in the People's brief, a criminal defendant need not show extraordinary circumstances or an abuse of discretion by the sentencing court in order to obtain a sentence reduction under CPL 470.15 (6) (b) (People v Cutaia, 167 A.D.3d 1534, 1535 [4th Dept 2018], lv denied 33 N.Y.3d 947 [2019]; see People v Thomas, 194 A.D.3d 1405, 1406 [4th Dept 2021]; People v Kibler, 187 A.D.3d 1569, 1570 [4th Dept 2020]). Finally, both the certificate of conviction and the uniform sentence and commitment form must be corrected to reflect County Court's imposition of a three-year, not a two-year, period of postrelease supervision on count one.