People v. Jagnjic

85 A.D.2d 135, 447 N.Y.S.2d 439, 1982 N.Y. App. Div. LEXIS 17080

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1982
• Status: Published

Opinions

OPINION OF THE COURT

Kupferman, J.

This is a most difficult situation where a heinous crime was committed with undoubted consequent traumatic effect upon the victim. On the other hand, from the information made available to us, except for this aberrational event, the defendant seems not to have a record of any kind and to be an industrious person with a family which he supports. The negotiated plea provided for an indeterminate term of imprisonment of not less than 5 years and not more than 15 years.

If the approach is simply punishment or deterrence, then the sentence, in my view, should not be disturbed.

On the other hand, prison will obviously not have any effect with respect to rehabilitation nor does it help his family nor the victim. There may be another way by which he may make amends. It may also be that the minimum sentence should be less with the determination as to release being left in the hands of the Parole Board.

The concurring opinion and the dissenting opinion well analyze the situation and the conflicting views. Because there has been no psychiatric evaluation, we do not have before us one aspect which might be more helpful in the final determination.

The judgment of the Supreme Court, Bronx County (Loguen, J.), rendered on May 19, 1980, convicting defendant, upon his plea of guilty, of two counts of aggravated sexual abuse, assault in the first degree (a violent felony offense), two counts of sexual abuse in the first degree (a violent felony offense), and endangering the welfare of a child, should be modified, on the law and the facts and in the exercise of discretion to vacate the sentence and to remand for resentence after psychiatric evaluation and after receipt of a psychiatric report.

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It is assumed that by this appeal the defendant has waived any privilege with respect to the use of a psychiatric report. (See Estelle v Smith, 451 US 454.)