People v. Stewart

123 A.D.3d 1064, 997 N.Y.S.2d 332

Opinion

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (D’Ernie, J.), imposed September 12, 2012, upon his conviction of assault in the second degree, upon his plea of guilty, the sentence being a determinate term of imprisonment of five years and a period of post-release supervision of three years, on the ground that the sentence was excessive.

Ordered that the sentence is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed upon the conviction of assault in the second degree from a determinate term of imprisonment of five years and a period of postrelease supervision of three years to a determinate term of imprisonment of three years and a period of postrelease supervision of two years.

Contrary to the People’s contention, the defendant’s purported waiver of his right to appeal was invalid (see People v Bradshaw, 18 NY3d 257, 267 [2011]; People v Pressley, 116 AD3d 794 [2014]; People v Robinson, 109 AD3d 489 [2013]), and thus, does not preclude review of his claim that the sentence imposed upon his conviction of assault in the second degree was excessive. Under the particular facts of this case, the sentence imposed was excessive to the extent indicated (see People v Suitte, 90 AD2d 80, 86 [1982]).

Eng, P.J., Dillon, Austin, Sgroi and Maltese, JJ., concur.