Opinion
2015-2753 Q CR
04-06-2018
The People of the State of New York, Respondent, v. Gabriel Garcia, Appellant.
Appellate Advocates (Nao Terai of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill and Anastasia Spanakos of counsel), for respondent.
PRESENT: :
Appellate Advocates (Nao Terai of counsel), for appellant.
Queens County District Attorney (John M. Castellano, Johnnette Traill and Anastasia Spanakos of counsel), for respondent.
Appeal by defendant, as limited by his brief, from a sentence of the Criminal Court of the City of New York, Queens County (John F. Zoll, J.), imposed October 28, 2015, upon his conviction of bail jumping in the third degree, upon his plea of guilty.
ORDERED that the sentence is affirmed.
On September 1, 2015, the People charged defendant, in a criminal complaint, with bail jumping in the third degree (Penal Law § 215.55). At his October 16, 2015 arraignment on that charge, the People, noting that multiple bench warrants in reference to other, pending criminal proceedings had issued with respect to defendant, offered plea and sentencing agreements to resolve the outstanding charges. On October 28, 2015, defendant appeared with assigned counsel before the Criminal Court (John F. Zoll, J.), whereupon the several charges were resolved by guilty pleas and sentences to time served and modest fines. As for the charge of bail jumping in the third degree, defendant accepted the court's offer, which the People did not oppose, of a $500 fine and 90 days' incarceration in the event the fine was not paid. Defendant pleaded guilty to the offense and was sentenced as promised.
As limited by his brief, defendant's sole contention is that, due to his indigence, the $500 fine should be vacated, noting that he was represented in the trial court by assigned counsel.
Defendant was sentenced according to the express terms of a highly favorable negotiated plea and sentencing agreement (see People v Farrar, 52 NY2d 302, 307 [1981] ["the 'sentence bargain' is a legitimate part of the plea bargaining process"]) which involved the disposition of several charges arising from multiple incidents, sentences of time served, and modest fines with the exception of the $500 fine imposed on the conviction of bail jumping in the third degree, a class A misdemeanor. In such circumstances, a defendant will not normally "be heard to complain that the sentence was unduly harsh or excessive" (People v Colin, 56 Misc 3d 141[A], 2017 NY Slip Op 51119[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see People v Galvez, 72 AD3d 838, 838 [2010]; People v Ubiles, 59 AD3d 572 [2009]; People v Kazepis, 101 AD2d 816 [1984]).
Although this court retains the authority, in the interest of justice, to modify a bargained-for sentence that does not represent an abuse of sentencing discretion (see CPL 470.15 [6] [b]; People v Delgado, 80 NY2d 780, 783 [1992]; People v Perez-Vazquez, 55 Misc 3d 135[A], 2017 NY Slip Op 50485[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), that authority is normally exercised only upon a showing of "mitigating or extraordinary circumstances" (People v Vega, 73 AD3d 1218, 1219 [2010]; see e.g. People v Jackson, 49 Misc 3d 134[A], 2015 NY Slip Op 51464[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). The fact that defendant was represented by assigned counsel is insufficient, standing alone, to warrant the inference that he is unable to pay the fine, and the record does not otherwise establish sufficient grounds to merit the relief sought (see e.g. People v Watson, 90 AD3d 1666, 1668 [2011] [reduction denied because the record failed to establish that defendant lacked "the resources to pay . . . the fine, despite the appointment of assigned counsel to represent him"]; People v Gallacher, 278 AD2d 935, 936 [2000] ["Although the fine is the maximum amount allowed by law, there is no evidence that defendant is unable to pay the fine"]; see also People v Ellsworth, 57 Misc 3d 157[A], 2017 NY Slip Op 51660[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; People v Onyeukwu, 56 Misc 3d 140[A], 2017 NY Slip Op 51100[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; cf. People v Helm, 260 AD2d 803, 803 [1999]).
This determination is without prejudice to defendant moving in the Criminal Court, if he be so advised, for relief from the fine (see CPL 420.10 [5]; e.g. People v Toledo, 101 AD3d 571 [2012]; People v Perez, 56 Misc 3d 126[A], 2017 NY Slip Op 50795[U] [App Term, 1st Dept 2017]; People v Ricchiuti, 55 Misc 3d 148[A], 2017 NY Slip Op 50712[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]).
Accordingly, the sentence is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: April 06, 2018