People v. Melbourne

2023 NY Slip Op 05371

Opinion

People v Melbourne (2023 NY Slip Op 05371)

People v Melbourne

2023 NY Slip Op 05371

Decided on October 24, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 24, 2023
Before: Manzanet-Daniels, J.P., Rodriguez, Pitt-Burke, Higgitt, Rosado, JJ.

Ind No. 317/21 Appeal No. 881 Case No. 2022-00839

[*1]The People of the State of New York, Respondent,

v

James Melbourne, Defendant-Appellant.

Jenay Nurse Guilford, Center for Appellate Litigation, New York (Benjamin Wiener of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Conor E. Byrnes of counsel), for respondent.

Judgment, Supreme Court, New York County (Felicia Mennin, J.), rendered February 8, 2022, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him to a term of five years' probation, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to four years of probation, and otherwise affirmed.

The court providently exercised its discretion by enhancing defendant's sentence based on two new arrests that violated the no-arrest condition of the plea. One arrest involved a legitimate self-defense claim and the other involved the theft of a cookie that cost a dollar. The charges underlying both postplea arrests were dismissed and the People do not oppose defendant's request for a reduction of his sentence to four years of probation. As a result, we conclude that the sentence should be reduced in the interest of justice to the extent indicated, thus comporting with the originally promised sentence at the plea proceeding (see People v Primack , 276 AD2d 268 [1st Dept 2000]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 24, 2023