People v Aisewomhonio

2015 NY Slip Op 06925 [131 AD3d 1177]

September 23, 2015

Appellate Division, Second Department

As corrected through Wednesday, November 4, 2015

[*1]

The People of the State of New York,Respondent, v Kingsley Aisewomhonio, Appellant.

Lynn W. L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Diana Lawless ofcounsel), for respondent.

Appeal by the defendant, as limited by his motion, from a sentence of the SupremeCourt, Kings County (Brennan, J.), imposed July 21, 2010, upon his conviction forviolation of probation, upon his plea of guilty, the sentence being a definite term of oneyear of imprisonment.

Ordered that the sentence is modified, as a matter of discretion in the interest ofjustice, by reducing the term of imprisonment from one year to 364 days.

The defendant's purported waiver of his right to appeal was invalid (see People v Bradshaw, 18NY3d 257, 265 [2011]; People v DeSimone, 80 NY2d 273, 283 [1992]) and,thus, does not preclude him from seeking a reduction of his sentence in the interest ofjustice.

Since the defendant has served his one-year term of imprisonment, the question ofwhether the one-year sentence should be reduced would ordinarily be academic (see People v Nicholson, 31AD3d 468 [2006]). However, because the one-year sentence may have potentialimmigration consequences (seePeople v Cardenas, 123 AD3d 940 [2014]; People v Bakare, 280 AD2d679 [2001]; People v Cuaran, 261 AD2d 169 [1999]), the question of whetherthe sentence should be reduced is not academic (see People v Cardenas, 123 AD3d 940 [2014]; Matter of Jonathan E., 119AD3d 943 [2014]).

Considering all the relevant circumstances of this case, including the potentialimmigration consequences to the defendant, we conclude that his sentence should bereduced by one day (see Peoplev Weston, 98 AD3d 1066, 1067 [2012]; People v Bakare, 280 AD2d679 [2001]; People v Cuaran, 261 AD2d 169 [1999]; cf. People v Serrano, 129AD3d 997 [2015]). Eng, P.J., Rivera, Hall, Austin and Cohen, JJ., concur.