People v. Goodearl

• Decision Date: 04 October 2019
• Docket Number: KA 18–01573,887
• Citation: 107 N.Y.S.3d 913 (Mem),176 A.D.3d 1613
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony J. GOODEARL, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

176 A.D.3d 1613

107 N.Y.S.3d 913 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Anthony J. GOODEARL, Defendant–Appellant.

887

KA 18–01573

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: October 4, 2019

DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT–APPELLANT.

CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (MARY–JEAN BOWMAN OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

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 definite term of imprisonment of one year, and as modified the judgment is affirmed and the matter is remitted to Supreme Court, Niagara County, for proceedings pursuant to CPL 470.45.

Memorandum: Defendant appeals from a judgment revoking the sentence of probation imposed upon his conviction of sexual abuse in the first degree ( Penal Law § 130.65[2] ) and sentencing him to a determinate term of three years' imprisonment plus 10 years' postrelease supervision. Preliminarily, we agree with defendant that his waiver of the right to appeal at the underlying plea proceeding does "not encompass the sentence ... imposed following his violation of probation" ( People v. Johnson , 77 A.D.3d 1441, 1442, 907 N.Y.S.2d 899 [4th Dept. 2010], lv denied 15 N.Y.3d 953, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010] ; see People v. Jones , 148 A.D.3d 1807, 1808, 49 N.Y.S.3d 337 [4th Dept. 2017], lv denied 29 N.Y.3d 1082, 64 N.Y.S.3d 171, 86 N.E.3d 258 [2017] ; People v. Rodriguez , 259 A.D.2d 1040, 1040, 689 N.Y.S.2d 895 [4th Dept. 1999] ). Contrary to the People's contention, the preservation rule does not apply to defendant's challenge to the scope of his waiver of the right to appeal (see People v. McGrew , 118 A.D.3d 1490, 1490, 987 N.Y.S.2d 539 [4th Dept. 2014], lv denied 23 N.Y.3d 1065, 994 N.Y.S.2d 324, 18 N.E.3d 1145 [2014] ; People v. Lewis , 48 A.D.3d 880, 880–881, 851 N.Y.S.2d 295 [3d Dept. 2008] ; People v. Hoover , 37 A.D.3d 298, 299–300, 830 N.Y.S.2d 115 [1st Dept. 2007] ).

On the merits, we agree with defendant that the sentence imposed following the revocation of his probation is unduly harsh and severe. Defendant was originally sentenced to, inter alia, 10 years' probation, and he served eight of those 10 years without incident. Defendant has no prior criminal record, was gainfully employed during his eight years on probation, and during that time attended assigned sex offender treatment programs, albeit without successful completion. Only after defendant had nearly completed his probationary term did the Probation...