People v Fisher

2020 NY Slip Op 01669 [181 AD3d 1051]

March 12, 2020

Appellate Division, Third Department

As corrected through Wednesday, May 6, 2020

[*1]

The People of the State of New York,Respondent, v Brandon P. Fisher, Appellant.

Martin J. McGuinness, Saratoga Springs, for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (Gordon Eddy of counsel), forrespondent.

Appeals (1) from a judgment of the County Court of Saratoga County (Murphy III,J.), rendered September 30, 2016, convicting defendant upon his plea of guilty of thecrimes of assault in the first degree, assault in the second degree (three counts) andcriminal possession of a weapon in the fourth degree, and (2) from a judgment of saidcourt, rendered January 25, 2017, which resentenced defendant upon his conviction ofone count of assault in the second degree.

On February 15, 2015, defendant, then 20 years old, was at home with his parentswhen he brutally assaulted his father with a baseball bat as he lay in bed, causing severeinjuries, including fractures to his face and skull and the loss of an eye. Defendant alsostruck his mother as he exited the bedroom, causing injuries, including a fractured arm.Defendant fled and was later apprehended and charged in a four-count indictment withassault in the first degree, two counts of assault in the second degree and criminalpossession of a weapon in the fourth degree (hereinafter the first indictment). While injail, defendant was charged by indictment with assault in the second degree stemmingfrom his conduct in kicking another inmate, which was captured on a video (hereinafterthe second indictment).

After extensive plea negotiations, defendant rejected the People's final plea offer,which came with a total promised prison sentence of 131/2 years.Defendant thereafter pleaded guilty to all counts in both indictments, in exchange forCounty Court's promise, with regard to the first indictment, to impose a prison sentenceof no less than five years and no more than 10 years, to be followed by a period ofpostrelease supervision.^[FN1] No promise was made as to sentencingon the second indictment, although the court indicated that it would entertain argumentsthat the sentences on the indictments should run concurrently rather than consecutively(see Penal Law § 70.25 [2], [5] [b], [c]). After a lengthy sentencinghearing that spanned three days, County Court imposed various concurrent terms ofimprisonment on the first indictment, the maximum of which was a term of 10 years withfive years of postrelease supervision on the top count, assault in the first degree. On thesecond indictment, the court imposed a prison term of three years, as latercorrected,^[FN2] tobe followed by a period of postrelease supervision of 11/2 years, to beserved concurrently with the prison sentences imposed under the first indictment.Defendant appeals from both judgments.

Defendant's sole contention on appeal is that the aggregate 10-year sentence imposedis harsh and excessive in light of the many mitigating factors regarding his background.Initially, we note that the aggregate prison sentence imposed was appreciably less thanthe maximum permissible prison sentence of 25 years that could have been imposed onthe top count, a class B violent felony (see Penal Law §§ 70.02[1] [a]; [3] [a]; 120.10 [1]), and reflected a measure of leniency in forgoing consecutivesentences for separate assaults on three victims (see Penal Law§ 70.25 [2], [5] [b], [c]). The record demonstrates that County Courtexpressly and fully considered the extensive testimony and evidence adduced at thesentencing hearing regarding, among other mitigating factors, defendant's mental healthhistory and hospitalizations, his developmental disabilities and diagnoses and theirimpact on his behavior, and his other health problems. Also considered in depth were thecorroborated history of emotional and physical abuse that defendant and other familymembers suffered at the hands of the father, defendant's youth and his lack of anycriminal history. The court weighed that mitigating evidence against the violent nature ofthe assaults, the gravity of the injuries and defendant's manipulative conduct after theattack on his parents. From this evidence, the court made its firsthand assessment that,notwithstanding the considerable mitigating factors, defendant "continues to present adanger to other people."

We find that County Court exhaustively considered all of the factors relevant tosentencing (see People v Farrar, 52 NY2d 302, 305-306 [1981]; People v Gilmore, 177 AD3d1029, 1029-1030 [2019]). Further, the troubling mitigating facts are reflected in thecourt's willingness to impose an aggregate sentence well below the maximum,consecutive sentences permitted (see Penal Law § 70.25 [2], [5][b]). Under these circumstances, and after careful review, we cannot conclude that thecourt abused its discretion or that extraordinary circumstances are present to warrant areduction of the sentences in the interest of justice (see CPL 470.15 [3] [c]; [6][b]).

Garry, P.J., Lynch, Clark, Aarons and Colangelo, JJ., concur. Ordered that thejudgments are affirmed.

Footnote 1:Defendant admitted thecharged conduct as to all counts of both indictments with the exception of count 3 of thefirst indictment, to which defendant entered an Alford plea (see NorthCarolina v Alford, 400 US 25 [1970]).

Footnote 2:County Court originallysentenced defendant under the second indictment to a prison term of three years followedby an impermissible one-year period of postrelease supervision, which was latercorrected at a resentencing on January 25, 2017.