Opinion
2018–06891 Ind.No. 1728/17
11-18-2020
The PEOPLE, etc., respondent, v. Ramon MENDEZ, appellant.
Del Atwell, East Hampton, NY, for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), for respondent.
Del Atwell, East Hampton, NY, for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed from two concurrent determinate terms of imprisonment of 15 years, to be followed by 5 years of postrelease supervision, to two concurrent determinate terms of imprisonment of 12 years, to be followed by 5 years of postrelease supervision; as so modified, the judgment is affirmed.
The defendant's challenge to his sentence as unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 ), is without merit (see generally People v. Bridges, 63 A.D.3d 752, 753, 880 N.Y.S.2d 341 ).
Contrary to the defendant's further contention, the record does not establish that the trial court impermissibly increased his punishment solely for asserting his right to proceed to trial (see People v. Patterson, 106 A.D.2d 520, 521, 483 N.Y.S.2d 55 ). The fact that the sentence imposed after the defendant elected to proceed to trial was greater than that offered during plea negotiations does not, standing alone, demonstrate that the defendant was punished for asserting his right to proceed to trial (see People v. Cruz, 137 A.D.3d 1158, 1160, 27 N.Y.S.3d 643 ; People v. Valery, 135 A.D.3d 975, 976, 24 N.Y.S.3d 362 ; see also People v. Pena, 50 N.Y.2d 400, 411, 429 N.Y.S.2d 410, 406 N.E.2d 1347 ). Furthermore, the difference between the sentence offered in a plea negotiation and that ultimately imposed was not "so great as to ... create the appearance that the defendant was being punished for proceeding to [trial]" ( People v. Brown, 70 A.D.2d 505, 506, 415 N.Y.S.2d 860 ; see People v. Bradley, 73 A.D.3d 1198, 1199, 902 N.Y.S.2d 142 ; cf. People v. Hodge, 154 A.D.3d 963, 965, 63 N.Y.S.3d 448 ).
Upon our independent review, however, we conclude that the sentence was excessive to the extent indicated herein (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., LEVENTHAL, MILLER, DUFFY and LASALLE, JJ., concur.