| People v Crowe |
| 2013 NY Slip Op 07882 [111 AD3d 1164] |
| November 27, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vPatricia M. Crowe, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joshua S. Shapiro of counsel), forrespondent.
Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered April 5, 2012, convicting defendant upon her plea of guilty of the crimes ofvehicular assault in the first degree and aggravated driving while intoxicated.
Defendant waived indictment and pleaded guilty to a superior court informationcharging her with vehicular assault in the first degree and aggravated driving whileintoxicated (hereinafter DWI) as a misdemeanor, which also satisfied a more seriouscharge. The charges stem from an incident in June 2011 in which defendant drove hervehicle when she had a blood alcohol level of .22% and struck a 21-year-old pedestrianwalking in a crosswalk, causing the victim to sustain severe physical injuries. CountyCourt, which had made no sentencing promise as part of the plea negotiations, imposed aprison term of 2
Under well-established principles, this Court will exercise its discretionary authorityto reduce a sentence in the interest of justice only in the presence of extraordinarycircumstances or an abuse of sentencing discretion (see People v Rollins, 51 AD3d 1279, 1282 [2008], lvdenied 11 NY3d 930 [2009]). While recognizing that the court imposed themaximum allowable sentence (see Penal Law § 70.00 [2] [d]; [3] [b]), wedo not discern the presence of either improvident sentencing discretion or extraordinarycircumstances of the type warranting a reduction of the sentence as a matter of discretion(see CPL 470.15 [2] [c]; [6] [b]).[*2]
Foremost, County Court fully considered themitigating sentencing factors, including that defendant had no prior criminal history,accepted responsibility for her actions, and admitted herself into a substance abuseprogram immediately after the accident. The court also considered that the DistrictAttorney and Probation Department recommended significantly lower sentences and thatdefendant had expressed some remorse to the Probation Department, albeit couched interms of how this incident saved her own substance-abuse-driven life.
However, County Court was also fully entitled to consider the devastating andincapacitating head, hip and facial injuries sustained by the victim, including the loss ofher teeth, a shattered palate, jaw fractures in several places, and misalignment of her jaw,all requiring multiple surgeries that were ongoing almost a year later at the time ofsentencing and which resulted in permanent damage, protracted pain, posttraumatic stressand depression (see People v Farrar, 52 NY2d 302, 305 [1981]). The victim wasforced to drop out of college, as well as the college sport she played and coached.Additionally, the record reflects that, before the accident, defendant had consumed a pintof bourbon, four beers and a shot of whiskey and then made the tragic choice to drive hervehicle. Further, the court noted that it was the opinion of the Probation Department thatshe had a high probability of recidivism.
Ultimately, in imposing sentence, County Court emphasized that the sufferinginflicted on the victim was incalculable, and that it was holding defendant responsible forthe extent of harm caused to the victim, as well as sending a message to the communitythat this type of conduct will not be tolerated, all appropriate to consider (see Peoplev Farrar, 52 NY2d at 305-306). Upon review of all relevant factors, we cannotconclude that the court's imposition of the maximum permitted sentence constituted anabuse of discretion based solely upon the fact that defendant has no criminal history, andwe decline to disturb the sentence as a matter of discretion in the interest of justice.
Rose, J.P., Lahtinen, Spain and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.