People v. Thompson
| Decision Date | 27 December 1982 |
| Parties | The PEOPLE, etc., Respondent, v. Bentley THOMPSON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before TITONE, J.P., and WEINSTEIN, O'CONNOR and RUBIN, JJ.
MEMORANDUM BY THE COURT.
Motion by the People to resettle an order of this court, dated June 7, 1982, which modified the defendant's sentence (People v. Thompson, 88 A.D.2d 939, 450 N.Y.S.2d 1019). We deem the motion to be in the nature of reargument.
On November 26, 1979, defendant offered to plead guilty to manslaughter in the first degree in full satisfaction of Kings County Indictment No. 2824-1978, which charged him, inter alia, with murder in the second degree. During the plea proceedings, the court informed defendant that he would receive a sentence of from 8 1/3 to 25 years imprisonment. Moreover, in explaining his consent to the reduced plea, the prosecutor stated on the record, inter alia, that the plea was acceptable to the People in view of "the term of imprisonment Your Honor will stipulate to". Thereafter, a sentence of from 8 1/3 to 25 years was imposed.
Defendant appealed on the ground that the sentence was excessive. Upon careful review of the facts of this case, we agreed and modified the sentence by reducing it to a term of imprisonment with a minimum of 3 1/3 years and a maximum of 10 years. The People opposed defendant's application for a reduction in sentence solely on the ground that the sentence imposed was not excessive. The People now move for reargument.
It is beyond cavil that this court, being empowered to modify a sentence "as a matter of discretion in the interest of justice" (CPL 470.15, subd. 6), may substitute its own discretion for that of a sentencing court.
"The power to substitute discretion helps us to meet recommended sentence review standards by making any disposition the sentencing court could have made, except an increased sentence * * * Without the substitution power, our ability to rectify sentencing disparities, reach extraordinary situations, and effectively set sentencing policy through the development of sentencing criteria, would be sorely handicapped" (People v. Suitte, App.Div., 455 N.Y.S.2d 675 [2nd Dept.1982] ).
Trial courts are likewise free to exercise their discretion at the time of sentencing and are not legally bound to impose the sentence which had been agreed upon at the time of the negotiated plea. However, if the court wants to impose a sentence in excess of that promised, defendant must be accorded an opportunity to withdraw...
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People v. Thompson
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... ... To the ... extent Defendant urges this Court to modify the promised ... sentence to direct a non-jail or weekend only sentence, the ... Court declines to do so other than upon the consent of the ... People (see generally, People v. Thompson, 91 A.D.2d ... 672 [2d Dept. 1982], reversed on other grounds, ... ...
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