People v Sisler

People v Sisler 2012 NY Slip Op 07833 Released on November 16, 2012 Appellate Division, Fourth 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.

Released on November 16, 2012
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.
1215 KA 11-02038

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

TIMOTHY SISLER, DEFENDANT-APPELLANT.


Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered July 24, 2009. The judgment convicted defendant, upon his plea of guilty, of sexual abuse in the first degree.


EDWARD P. PERLMAN, CONFLICT DEFENDER, LOCKPORT, FOR DEFENDANT-APPELLANT.
MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF COUNSEL), FOR RESPONDENT.


It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence to a determinate term of imprisonment of four years and a period of postrelease supervision of three years and as modified the judgment is affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree (Penal Law § 130.65 [3]), defendant contends that County Court erred in imposing an enhanced sentence without affording him an opportunity to withdraw his plea. That contention is not preserved for our review because defendant did not object to the enhanced sentence, nor did he move to withdraw the plea or to vacate the judgment of conviction (see People v Sprague, 82 AD3d 1649, 1649, lv denied 17 NY3d 801; People v Vaillant, 77 AD3d 1389, 1390), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We agree with defendant, however, that the sentence of a determinate term of incarceration of seven years followed by a period of three years of postrelease supervision is unduly harsh and severe under the circumstances of this case. As a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]), we therefore modify the judgment by reducing the sentence to a determinate term of imprisonment of four years and a period of three years of postrelease supervision.
Entered: November 16, 2012
Frances E. Cafarell
Clerk of the Court