| People v Sheehan |
| 2013 NY Slip Op 03859 [106 AD3d 1112] |
| May 29, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Barbara Sheehan, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary S. Fidel and DonnaAldea of counsel), for respondent. Dorchen A. Leidholdt, New York, N.Y., and Nancy K.D. Lemon, Berkeley,California, pro hac vice, for amici curiae Sanctuary for Families, Center for BatteredWomen's Services, National Clearinghouse for the Defense of Battered Women,Women's Law Project, Domestic Violence Program at Albany Law School Clinic andJustice Center, Pace Women's Justice Center, Connect, Domestic Violence Report, LegalProject, Washington State Coalition Against Domestic Violence, National Network toEnd Domestic Violence, SUNY Buffalo School of Law Women, Children, and SocialJustice Clinic, Minnesota Indian Women's Resource Center, New York Legal AssistanceGroup, New York State Coalition Against Domestic Violence, and Legal AidSociety.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered November 10, 2011, convicting her of criminal possession of aweapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed, and the matter is remitted to the SupremeCourt, Queens County, for further proceedings pursuant to CPL 460.50 (5).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d490, 495 [1987]). Upon reviewing the record, we are satisfied that the jury's verdict ofguilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that the Supreme Court erred by precluding her frompresenting expert psychiatric testimony with respect to her mental condition is academicin light of her acquittal of the count of murder in the second degree (see People vPons, 68 NY2d 264, 265 [1986]; People v Almodovar, 62 NY2d 126, 130[1984]; People v Marquez,82 AD3d 1123, 1124 [2011]; People v Thomas, 232 AD2d 667 [1996]).[*2]
The sentence imposed was not excessive (seePeople v Suitte, 90 AD2d 80 [1982]). We acknowledge that the record demonstratesthat the defendant, a first-time felony offender, had been the victim of domestic violence,and that such domestic violence was a factor in the defendant's commission of criminalpossession of a weapon in the second degree, the crime for which she was convicted.Consequently, we agree with our dissenting colleague that Penal Law § 60.12 isapplicable and could have been utilized by the Supreme Court to sentence the defendantto an indeterminate term of imprisonment. However, under the particular circumstancesof this case, it was not an improvident exercise of discretion for the court to decline tosentence the defendant pursuant to that statute. Moreover, the sentence imposed, adeterminate term of imprisonment of five years, was appropriate and not excessive.While the court accurately noted that the sentence would have limited deterrent andrehabilitative impact on this particular defendant, the court's aim in imposing thesentence was, in large part, to deter others from engaging in similar misconduct. Indeed,the court stated at sentencing that "[s]ociety certainly must be concerned with self-help,violent behavior that is not sanctioned by law." Since the court viewed general deterrenceas an overriding sentencing principle, we cannot say that the emphasis was erroneous orthat the interest of justice calls for a reduction in the defendant's sentence (see Peoplev Rodriguez, 161 AD2d 737, 738 [1990]).
The defendant's remaining contentions are without merit. Dillon, J.P., Chambers andHall, JJ., concur.
Balkin, J., concurs in part, and dissents in part, and votes to modify the judgment, asa matter of discretion in the interest of justice, by reducing the sentence imposed to anindeterminate term of imprisonment of 2¼ to 4½ years, and otherwise affirmthe judgment, with the following memorandum: I agree that the defendant's convictionshould stand, but I would reduce the sentence as a matter of discretion in the interest ofjustice. Therefore, I respectfully dissent from so much of the order as affirms thesentence.
In "Jenna's Law" (L 1998, ch 1) the Legislature lengthened the authorized prisonterms for first-time violent felons by, among other things, requiring the imposition ofdeterminate sentences. In the very first section of the new law, however, the Legislatureprovided an exception, contained in a new Penal Law § 60.12, which allows acourt to sentence a first-time violent felony offender to an indeterminate term ofimprisonment if the victim's domestic violence against the offender was a factor in theoffender's commission of the crime.
The indeterminate sentences permitted under the exception were not onlysignificantly less harsh than the determinate sentences that Jenna's Law created, but wereexactly the same sentences as those that could be imposed on first-time violent offendersbefore Jenna's Law was enacted (compare Penal Law § 60.12 withPenal Law § 70.02 [former (2)] and Irving Schwartz, New YorkSentence Charts, McKinney's Cons Laws of NY, Book 39 [1998 ed]). In other words, theexception permits those defendants to be sentenced under the old law.
In this case, the sentencing court recognized the applicability of the exception, butdeclined to sentence the defendant to an indeterminate term of imprisonment.
No one disputes the fact that, before she committed this crime, the defendant was aproductive, law-abiding citizen. And it is most likely that she will be a productive,law-abiding citizen when she finishes serving her sentence. Even the sentencing courtthought so; it said: "[t]here is very little in this world to be sure of, but I am certain to theextent possible that this will be [the defendant's] only lifetime contact with the criminaljustice system . . . and that the sentence thus has limited deterrent andrehabilitative impact on [her]."
Moreover, the record in this case—both the trial evidence and the additionalevidence put before the court at sentencing—overwhelmingly established that thedefendant had been the [*3]victim of her husband'sconstant physical and verbal abuse for almost two decades. At the very least, the recordestablished that, as the sentencing court found and the People themselves do not dispute,the prerequisites of Penal Law § 60.12 were satisfied, so the defendant waseligible to be sentenced to an indeterminate pre-Jenna's Law term of imprisonment.
We need not find that the sentencing court "abused" its discretion in order to invokeour interest of justice jurisdiction to reduce a sentence. Rather, as this Court said inPeople v Suitte, "since the Legislature has empowered us to modify sentences 'asa matter of discretion in the interest of justice' and our general review powers include theright to do whatever the trial court could have done even in matters entrusted to thediscretion of that court, we can substitute our own discretion for that of a trial courtwhich has not abused its discretion in the imposition of a sentence" (90 AD2d 80, 85-86[1982], quoting CPL 470.15 [3] [citations omitted]). Under the circumstances of thiscase, we should utilize that power because the imposition of a five-year determinate termof imprisonment on this defendant was improvident. The Legislature created acompassionate exception within Jenna's Law for certain victims of domestic violence. Ifnot now, when?