Opinion
1097 KA 18-00799
03-11-2022
The PEOPLE of the State of New York, Respondent, v. Yokohiro VIDAL-ORTIZ, Defendant-Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (GARY MULDOON OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (GARY MULDOON OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
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 of imprisonment imposed on each count to a determinate term of eight years, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of four counts of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39 [1] ) and two counts of criminal possession of a controlled substance in the third degree (§ 220.16 [1]).
To the extent that defendant contends that he was improperly penalized for asserting his right to a trial, that contention is not preserved for our review (see People v. Fudge , 104 A.D.3d 1169, 1170, 960 N.Y.S.2d 792 [4th Dept. 2013], lv denied 21 N.Y.3d 1042, 972 N.Y.S.2d 539, 995 N.E.2d 855 [2013] ; People v. Griffin , 48 A.D.3d 1233, 1236-1237, 851 N.Y.S.2d 808 [4th Dept. 2008], lv denied 10 N.Y.3d 840, 859 N.Y.S.2d 399, 889 N.E.2d 86 [2008] ; People v. Irrizarry , 37 A.D.3d 1082, 1083, 829 N.Y.S.2d 351 [4th Dept. 2007], lv denied 8 N.Y.3d 946, 836 N.Y.S.2d 557, 868 N.E.2d 240 [2007] ) and, in any event, that contention lacks merit (see People v. Washington , 160 A.D.3d 1451, 1452, 72 N.Y.S.3d 876 [4th Dept. 2018] ; Griffin , 48 A.D.3d at 1236-1237, 851 N.Y.S.2d 808 ). However, we agree with defendant that the sentence is unduly harsh and severe under the circumstances of this case. Thus, as a matter of discretion in the interest of justice, we modify the judgment by reducing the sentence of imprisonment imposed on each count to a determinate term of eight years (see CPL 470.15 [6] [b] ), to be followed by the three years of postrelease supervision imposed by County Court, with the sentences remaining concurrent.
Finally, as the People correctly concede, the certificate of conviction incorrectly reflects that defendant was sentenced as a second violent felony offender, and it must therefore be amended to reflect that defendant was sentenced as a second felony offender (see People v. Williams , 187 A.D.3d 1564, 1565, 129 N.Y.S.3d 884 [4th Dept. 2020] ; People v. Kowal , 159 A.D.3d 1346, 1347, 73 N.Y.S.3d 298 [4th Dept. 2018] ).