People v. Brunson

131 A.D.2d 689, 516 N.Y.S.2d 767, 1987 N.Y. App. Div. LEXIS 48147

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1987
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heller, J.), rendered May 14, 1985, convicting him of grand larceny in the third degree, upon his plea of guilty, and sentencing him to an indeterminate term of from 2 to 4 years’ imprisonment.

Ordered that the judgment is modified, on the law, and as a matter of discretion in the interest of justice, by reducing the sentence to an indeterminate term of 1 Vi to 3 years’ imprisonment; as so modified, the judgment is affirmed.

At the plea proceeding, the court promised the defendant a sentence of lVi to 3 years unless, inter alia, he professed his innocence to his probation officer prior to sentencing. At the sentencing proceeding, after reviewing the defendant’s probation report, the court found that the defendant violated this condition of the sentencing promise. As a result, the defendant received a sentence of 2 to 4 years’ imprisonment.

Assuming, arguendo, that the defendant asserted his innocence to the probation officer who prepared his presentence report, this fact alone does not warrant additional punishment. It was an abuse of discretion to increase the defendant’s sentence on that basis alone. The sentence originally promised to the defendant should have been imposed. Mangano, J. P., Bracken, Niehoff, Kooper and Spatt, JJ., concur.