Opinion
No. SMZ-70054-23/001
10-27-2023
The People of the State of New York, v. Derek F. McQueen, Defendant.
William G. Zickl, Esq. Assistant District Attorney for the People/Respondent Erin A. Tresmond, Esq. Attorney for Defendant/Appellant
Unpublished Opinion
William G. Zickl, Esq.
Assistant District Attorney for the People/Respondent
Erin A. Tresmond, Esq.
Attorney for Defendant/Appellant
Melissa Lightcap Cianfrini, J.
Having pled guilty to the reduced charge of Criminal Trespass in the Second Degree, Defendant appeals from a judgment of the Pembroke Town Court insofar as it sentenced him to a definite term of incarceration for 364 days to "run concurrently" with his recently imposed sentence from County Court to an indeterminate term of one to three years in the Department of Corrections and Community Supervision and ordered him to pay restitution in the amount of $300.00. Oral Argument was held at the July 17, 2023 term of Court. The Defendant's principle claims in this appeal are that his sentence was unduly harsh and severe under the circumstances presented to the sentencing court and the imposition of restitution was improper as the record did not support the amount ordered.
This sentence merged by operation of law due to the Defendant's re-sentence to an indeterminate term of imprisonment of 1 to 3 years for a violation of felony probation.
A claim that a sentence is excessive is, by definition (see CPL 470.15 [6] [b]), addressed to this Court's interest of justice jurisdiction, and does not need to be preserved as a question of law (cf. CPL 470.05 [2]; CPL 470.15 [4])(People v. Williams, 120 A.D.3d 721,724 [2nd Dep. 2014). Contrary to the People's contention, in reviewing that challenge, "it is inappropriate for this Court to address whether the sentencing court abused its discretion" (People v. Alexander, 197 A.D.3d 1013, 1015 [4th Dept. 2021], lv. denied 37 N.Y.3d 1094 (2021); People v. Garcia-Gual, 67 A.D.3d 1356, 1356 [4th Dept. 2009], lv denied 14 N.Y.3d 771 [2010]; see People v. Parker, 137 A.D.3d 1625, 1626 [4th Dept. 2016]; see generally People v. Delgado, 80 N.Y.2d 780, 783 [1992]). Rather, this Court "has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range," and such "sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court" (Delgado, 80 N.Y.2d at 783).
Nevertheless, given defendant's significant criminal history, which included committing a crime while on probation for a felony conviction, his refusal to accept responsibility, his complete disregard for the victim by calling the victim names during the pre-sentence interview, his high supervision level under COMPAS and the recommendation of incarceration made by the Genesee County Probation Department, this Court discerns no basis upon which to disturb the sentence imposed.
Correctional Offender Management Profiling for Alternative Sanctions
With respect to Defendant's contentions regarding restitution, the matter was preserved for appellate review by defense counsel's objection to restitution being imposed (See Appendix at p. 052) and was equivalent to a request for a hearing. Pursuant to CPL §§ 60.27 and 400.30, if the record does not contain sufficient evidence to support such finding or upon request by the Defendant, the court must conduct a hearing. The record is totally devoid of any support for the claim of $300.00. No claim was submitted by the victim as part of the PSI Report. Moreover, the December conversation relied upon by the People does not appear on the record.
Therefore, a restitution hearing must be conducted in accordance with both CPL §60.27 and CPL §400.30 to determine the appropriate amount, if any.
Conclusion
Therefore, this Court AFFIRMS the local court's sentence and REMITS this matter for a restitution hearing to be conducted.
The foregoing constitutes the Decision and Order of this Court. Proceed accordingly.