Muldoon, Getz & Reston

Welcome to the law firm of Muldoon, Getz & Reston - Serving Rochester since 2003

Issues In NY Criminal Law--Vol. 4, #3©

Issue: Court's misunderstanding of sentencing range.

A trial court may rely upon a variety of factors in reaching the proper sentence. Normally, appellate courts defer to the sentencing court's discretion.

But where the record shows that the lower court imposed a sentence based on an erroneous understanding of the sentencing statute, a different appellate result may occur. The appeals court may remit the case for resentencing. People v Crosby, 221 AD2d 357, 633 NYS2d 364 (2d Dept 1995); People v Mercado, 200 AD2d 424, 606 NYS2d 223 (1st Dept 1994). Handling a Criminal Case in New York (West Group 2001), § 21:207. The lower court's failure to apprehend the extent of its discretion violates the defendant's right to be sentenced according to law. See People v Thomas, 245 AD2d 1136, 667 NYS2d 536 (4th Dept 1997).

Sentencing above minimum

Yet, where the court below imposed a sentence higher than the permissible minimum, resentencing will not occur, despite the court's erroneous understanding of sentencing. People v Sykes, 235 AD2d 278, 653 NYS2d 300 (1st Dept 1997). In order for remittal to occur, there must be "some expression of reservation by the court about the fairness of the sentence to be imposed." People v Barzge, 244 AD2d 213, 664 NYS2d 283 (1st Dept 1997).

DWI fines

With DWI sentencing, both courts and practitioners may labor under the misimpression that the statutory fines are mandatory. In fact, the VTL provides that the punishment may be a fine, imprisonment, or both. Vehicle and Traffic Law § 1193(1). (Similarly, where a defendant is adjudicated a Youthful Offender, statutory fines and surcharges that result upon a conviction of a crime do not apply. See People v Floyd J, 61 NY 2d 895, 474 NYS2d 476 (1984)).

"Beware those who proclaim the cause of heaven/Beyond heaven's Own decree." -- Moliere, Tartuffe


Copyright© 1999-2008 by Gary Muldoon. All rights reserved