| People v Kearns |
| 2009 NY Slip Op 07168 [66 AD3d 1084] |
| October 8, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James M.Kearns, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Appeal from a judgment of the County Court of Columbia County (Nichols, J.), renderedJuly 1, 2008, convicting defendant upon his plea of guilty of the crime of burglary in the seconddegree (eight counts).
Defendant entered a private residence in Columbia County on eight different occasions inJune and July 2007 and took money. As a result, he was charged with eight counts of burglary inthe second degree. Defendant pleaded guilty to all of the charges. Although no specific sentencewas promised as part of the plea agreement, defendant was advised of the maximum sentencethat could be imposed. He was subsequently sentenced to an aggregate term of 14 years inprison, to be followed by five years of postrelease supervision. Defendant appeals.
Defendant's sole argument is that the sentence imposed is harsh and excessive. Based on ourreview of the record, we agree. Defendant has a minimal criminal history, consisting of a fewminor drug and weapons convictions, and the crimes at issue do not appear to be part of anongoing course of criminal conduct. Rather, the crimes at issue were apparently fueled bydefendant's need for cash to support a drug habit, and he entered the subject residence by use of akey he obtained when he worked for the victims. Notably, defendant did not carry a weapon norexhibit violent behavior while carrying out the crimes, but slipped into the home while thevictims were asleep. In view of the circumstances, and considering the lengthy sentence imposedby County Court for the type of criminal conduct at issue, we choose to exercise our interest of[*2]justice jurisdiction and reduce the sentence accordingly(see CPL 470.15 [6] [b]; see e.g. People v Suhalla, 97 AD2d 857, 858 [1983];compare People v Colantonio, 277 AD2d 498, 501 [2000], lv denied 96 NY2d781 [2001]). Therefore, the sentence imposed for burglary in the second degree under count fourof the indictment shall run concurrently with the sentences imposed for burglary in the seconddegree under counts one, two, and three of the indictment, instead of consecutively, and thesentences for the remaining counts shall remain unaffected so that the aggregate term ofimprisonment imposed upon defendant is 10½ years, to be followed by five years ofpostrelease supervision.
Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by directing that defendant's sentencefor burglary in the second degree under count four of the indictment shall run concurrently withthe sentences for burglary in the second degree under counts one, two, and three of theindictment, and, as so modified, affirmed.