| People v Wyrick |
| 2017 NY Slip Op 07488 [154 AD3d 1181] |
| October 26, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Donald R.Wyrick III, Appellant. |
Leonard J. Levenson, New York City, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered May 14, 2015, upon a verdict convicting defendant of the crimes of robbery in the thirddegree, criminal possession of a controlled substance in the second degree and grand larceny inthe third degree.
On July 10, 2012, defendant, wearing clothing to conceal his identity, entered a pharmacyand handed a note to the pharmacist stating, "Give me all your oxycodone, 30 milligrams, andoxycontin, I have a knife." The pharmacist complied with the demand, and defendant exited thepharmacy with a bag containing approximately 1,192 pills worth $5,253. After law enforcementreceived a tip from defendant's former spouse, defendant was arrested in 2014 in Delaware andcharged in an indictment with robbery in the first degree, criminal possession of a controlledsubstance in the second degree and grand larceny in the third degree. Following a jury trial,during which defendant admitted to robbing the pharmacy but denied that he possessed a knife,he was convicted of the lesser included offense of robbery in the third degree, criminalpossession of a controlled substance in the second degree and grand larceny in the third degree.County Court sentenced defendant to concurrent prison terms of 2
[*2] Defendant argues that his sentence was harsh and excessive given, among other things,his military service-related mental health issues, as well as his opiate addiction resulting fromprescriptions that he received to address the effects of malaria, which he contracted during hisfirst tour of duty in Afghanistan.[FN*] This Court has the broad authority to modify asentence in the interest of justice, even one within the permissible statutory parameters(see CPL 470.15 [6] [b]; People v Delgado, 80 NY2d 780, 783 [1992]; People v Perry, 70 AD3d 1063,1065 [2010], lv denied 14 NY3d 804 [2010]). In light of defendant's admission from theoutset that he perpetrated the robbery, albeit without a knife, the correlation between the illnessthat he contracted while serving in Afghanistan and an opioid addiction that precipitated thisevent, his duly expressed remorse and his lack of any prior criminal record, we find that hissentence for the criminal possession of a controlled substance conviction was unduly severe andshould be reduced to three years, with five years of postrelease supervision, to run concurrentlywith the sentences for his other convictions. Correspondingly, we vacate the $5,000 fine.
McCarthy, J.P., Clark and Pritzker, JJ., concur.
Aarons, J. (dissenting). I respectfully dissent. Because I perceive no abuse of discretion orextraordinary circumstances warranting the reduction of the prison term of eight years, followedby five years of postrelease supervision, imposed for the conviction for criminal possession of acontrolled substance in the second degree, I would affirm the judgment.
The imposition of a sentence is a matter that rests in the sound discretion of the trial court(see People v Perkins, 5 AD3d801, 804 [2004], lv denied 3 NY3d 741 [2004]; People v Farrell, 246 AD2d748, 749 [1998]; People v Fuller, 185 AD2d 446, 449 [1992], lv denied 80 NY2d974 [1992]). The exercise of such discretion requires the consideration of, among other things,"the crime charged, the particular circumstances of the individual before the court and thepurpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence" (People vFarrar, 52 NY2d 302, 305 [1981]; see People v Lanfair, 18 AD3d 1032, 1034 [2005], lvdenied 5 NY3d 790 [2005]). While we may modify a sentence as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [b]), "where a sentence is within permissiblestatutory ranges, it shall not be disturbed unless the sentencing court abused its discretion orextraordinary circumstances exist warranting a modification" (People v Journey, 260AD2d 863, 864 [1999]; see People vCole, 150 AD3d 1476, 1482 [2017]). This is not to say that we should rubber stampimposed sentences. Although rare, the interest of justice demands at certain times that weexercise our discretion by modifying an imposed sentence (see e.g. People v Thomas, 112 AD3d 999, 1001 [2013], lvdenied 22 NY3d 1141 [2014]; People v Garner, 56 AD3d 951, 952-953 [2008], lv denied12 NY3d 783 [2009]; People v Williams, 114 AD2d 683, 685 [1985]; see generallyPeople v Delgado, 80 NY2d 780, 783 [1992]). This case, however, is not one of thosetimes.
During sentencing, County Court gave due consideration to various factors when crafting itssentence. County Court noted defendant's service in the armed forces, his head injury, his lack ofcriminal history and his opiate addiction resulting from prescriptions. The record revealsmitigating circumstances, such as defendant's expressed remorse for his actions, his acceptanceof responsibility for the crime and his concern for the care of his wife and seven-year-old child.Although these factors certainly militate in favor of a reduced sentence (see [*3]People v Board, 97 AD2d 610, 610 [1983]), County Courtstated that there was "one thing that [was] present that overrides much of the good things, simplythe nature of the offense." In other words, this was a serious crime. County Court stated thatdefendant's case was different than most drug addiction cases it had seen in that "[t]his [was not]a forgery case, this [was not] a pure theft case, this [was not] a burglary case when [defendant]went into some house." Rather, defendant walked into a pharmacy wearing clothing to concealhis identity and demanded from a pharmacist all of the oxycodone and oxycontin pills that werein the pharmacy. While defendant did not have a knife, he nonetheless represented on a note tothe pharmacist that he possessed one. Defendant left with over a thousand pills worth $5,253.County Court further noted that, notwithstanding his remorse, defendant did not turn himself into law enforcement officials and "would still be out there" but for "good police work." Indeed,two years had passed since the commission of the crime before defendant's ex-wife provided a tipto the police suspecting defendant's involvement.
Defendant's circumstances are unfortunate. In my view, however, inasmuch as we haveconsistently encountered instances in which a defendant seeking a reduced sentence has aminimal or lacks a criminal history, is a caretaker of a child, or suffers from substance abuse,they are not extraordinary (see People vConnelly, 151 AD3d 1480, 1481 [2017], lv denied30 NY3d 948 [Sept. 27, 2017]; People v Collier,146 AD3d 1146, 1152 [2017], lv denied 30 NY3d 948 [Sept. 4, 2017];People v Ruise, 131 AD3d1328, 1328 [2015]; People vOlsen, 124 AD3d 1084, 1087 [2015], lv denied 26 NY3d 933 [2015]; People v Farnsworth, 103 AD3d982, 984 [2013]; People vBozydaj, 14 AD3d 791, 792 [2005], lv denied 4 NY3d 884 [2005]). CountyCourt took into consideration defendant's statement at sentencing and the information containedin his presentence report and balanced the facts that favored him with the facts that weighedagainst him.[FN*] Inimposing the sentence, County Court concluded that it was "a fair sentence for [defendant], fairto [the] community, fair to the People." Based on the foregoing, I cannot say that County Courtabused its discretion or that the record presents extraordinary circumstances warranting thereduction of the sentence or a vacatur of the $5,000 fine as directed by the majority (see People v Martinez, 141 AD3d1007, 1008 [2016], lv denied 28 NY3d 1147 [2017]; People v Leduc, 140 AD3d 1305,1307-1308 [2016], lv denied 28 NY3d 932 [2016]; People v Reynoso, 11 AD3d 719, 720 [2004]; People vHearn, 248 AD2d 889, 890-891 [1998]). Accordingly, I would affirm.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentence imposed for criminal possession of a controlled substance in the seconddegree to three years, with five years of postrelease supervision, and by vacating the $5,000 fine,and, as so modified, affirmed.
Footnote *:Defendant returned toAfghanistan for a second tour of duty in 2013.
Footnote *:I note that the People requestedthat County Court sentence defendant to a prison term of 10 years for the conviction of criminalpossession of a controlled substance in the second degree.