The People v. Jesse Brabham
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 212 SSM 38
The People &c.,
Appellant,
v.
Jesse Brabham,
Respondent.
Submitted by Allen J. Vickey, for appellant.
Submitted by Adrienne M. Gantt, for respondent.
Decided September 23, 2010:
On review of submissions pursuant to section 500.11 of
the Rules, appeal dismissed upon the ground that the
modification at the Appellate Division was not "on the
law alone or upon the law and such facts which, but for
the determination of law, would not have led to * * *
modification" (CPL 450.90[2][a]). In view of the
above, we have no occasion to comment on the dissent's
position that Penal Law § 70.25(2-c) mandates that the
Appellate Division delineate its reasons for modifying
the sentence. Chief Judge Lippman and Judges Ciparick,
Graffeo, Read and Jones concur. Judge Pigott dissents
in an opinion in which Judge Smith concurs.
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SSM No. 38
People v Jesse Brabham
PIGOTT, J.(dissenting) :
We are dismissing the People's appeal because, in the
majority's view, the modification by the Appellate Division was
not "on the law alone or upon the law and such facts which, but
for the determination of law, would not have led to reversal or
modification" (see Criminal Procedure Law § 450.90 [2] [a]).
From that ruling, I respectfully dissent.
Defendant pleaded guilty to attempted criminal
possession of a controlled substance in the third degree under a
plea agreement in which sentencing was to be deferred while he
participated in a drug treatment program.
Before completing the
program, defendant absconded from the jurisdiction, resulting in
a bail jumping charge.
When he was involuntarily returned to New
York two and one-half years later, defendant pleaded guilty to
the bail jumping offense.
Supreme Court sentenced defendant, under Penal Law §
70.25 (2-c), to consecutive terms of 4 to 8 years on the drug
offense and 1 ½ to 3 years on the bail jumping offense.
On
appeal, the Appellate Division reduced defendant's sentence, "as
a matter of discretion in the interest of justice", by directing
that the sentences be served concurrently rather than
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- 2 consecutively (66 AD3d 557).
SSM No. 38
The court simply stated that it
found "mitigating circumstances" warranting a concurrent sentence
for bail jumping, but failed to explain those factors on the
record.
Under Penal Law § 70.25(2-c), when a defendant is
convicted of bail jumping, that sentence shall run consecutively
with defendant’s other sentence.
The statute further provides,
however, that the court may, "in the interest of justice", order
a sentence to run concurrently if it finds mitigating
circumstances that bear directly upon the manner in which the
crime was committed (Penal Law § 70.25 [c-2]).
If the court
determines that consecutive sentences should not be ordered, it
is required to make a "statement on the record of the facts and
circumstances upon which such determination is based" (id.).
Thus, under the clear language of the statute, the court’s
interest of justice jurisdiction in ordering concurrent sentences
is limited to finding mitigating factors and making an
explanatory statement of those factors on the record.1
In this case, the Appellate Division, although
exercising its interest of justice jurisdiction, failed to comply
with the clear mandate of the statute.
1
In the absence of an
In People v Leopold (13 NY3d 923 [2010]), we found, under
somewhat similar circumstances, that the Appellate Division
should be reversed because it failed to set forth the appropriate
findings of fact and conclusions of law as required by
Corrections Law § 168-n (3).
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SSM No. 38
explanation of the mitigation circumstances, the court was
required to run the sentences consecutively.
Because the
Appellate Division made an erroneous determination on the law, in
my view, we need not dismiss this appeal.
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