| People v Patel |
| 2009 NY Slip Op 05827 [64 AD3d 1246] |
| July 10, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Atulkumar Patel, Appellant. |
—[*1]
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedOctober 9, 2008. The judgment revoked defendant's sentence of probation and imposed asentence of incarceration and probation with electronic monitoring.
It is hereby ordered that the judgment so appealed from is modified as a matter of discretionin the interest of justice by vacating that part revoking the sentence of probation and imposingsentence and by continuing the sentence of probation originally imposed and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment revoking the sentence of probationimposed upon his conviction of driving while intoxicated as a felony (Vehicle and Traffic Law§ 1192 [3]; § 1193 [1] [c] [former (i)]) and aggravated unlicensed operation of amotor vehicle in the third degree (§ 511 [1] [a]) and sentencing him to a definite term ofincarceration of 120 days and continued probation with electronic monitoring. Defendantadmitted that he violated one of the terms of his probation by traveling to India without theconsent of the Probation Department, to be with his dying grandfather. Although we concludethat County Court did not abuse its discretion in revoking defendant's probation based upon thatadmitted violation, "we can substitute our own discretion for that of a trial court which has notabused its discretion in the imposition of a sentence" (People v Suitte, 90 AD2d 80, 86[1982]; see People v Dunn, 306 AD2d 945 [2003]). In view of the compelling mitigatingfactors in this case, we modify the judgment as a matter of discretion in the interest of justice byvacating that part revoking the sentence of probation and imposing sentence and by continuingthe sentence of probation originally imposed.
All concur except Scudder, P.J., and Smith, J., who dissent in part and vote to affirm inaccordance with the following memorandum.
Scudder, P.J., and Smith, J. (dissenting in part). We respectfully dissent in part and wouldaffirm the judgment because we cannot agree with the majority that the sentence imposed byCounty Court is so unduly harsh and severe as to warrant our interference with the court'ssentencing discretion. The record establishes that, in September 2006, defendant was sentencedto four months of intermittent incarceration and to five years of probation based upon hisconviction of driving while intoxicated as a felony (Vehicle and Traffic Law § 1192 [3];§ 1193 [1] [c] [former (i)]). Approximately 15 months later, in December 2007, defendantsought permission to travel to India to be with his dying grandfather, and his request was deniedby the Department of [*2]Probation. Defendant went to Indiadespite the denial of his request, and he did not return to the United States until March 5, 2008,approximately two months after his grandfather died. While in India, defendant contacted hisprobation officer only once.
Although we have broad, plenary power to substitute our own discretion for that of thesentencing court in the interest of justice (see People v Delgado, 80 NY2d 780 [1992];People v Hearn, 248 AD2d 889, 890 [1998]), that power should be exercised only inextraordinary circumstances (seegenerally People v Massey, 45 AD3d 1044, 1048 [2007], lv denied 9 NY3d1036 [2008]). The facts of this case, which include the intentional defiance of the ProbationDepartment's directive and the continued truancy of defendant for approximately two monthsafter the death of his grandfather, do not present such extraordinary circumstances. We note thatthe court carefully considered and was sympathetic with respect to defendant's reason fortraveling to India, and we further note that the court imposed a sentence of incarceration in largepart because of the failure of defendant to return to the United States during the period ofapproximately two months following the death of his grandfather. In addition, we note that thecourt could have imposed a significantly longer term of incarceration than that imposed, and thatthe court credited defendant for time served such that defendant's actual incarceration wasincreased only by an additional 69 days, according to the presentence report. By continuing thesentence of probation originally imposed, the majority has in effect permitted defendant toviolate the conditions of his probation without consequence. We therefore would affirm thejudgment and remit the matter to County Court for proceedings pursuant to CPL 460.50 (5).Present—Scudder, P.J., Smith, Centra, Peradotto and Green, JJ.