As my New York Criminal Procedure professor emphasized to the class, the discretion of intermediate appellate court is broad and such court can modify a sentence in its discretion – a decision that will evade the review of the Court of Appeals. For criminal appellate attorneys, this is significant because the relief one can request on appeal. The case discussed below is one that fits the mold: a defendant who left the jurisdiction of the Court and, after nearly two decades, can come back and appeal a sentence as unfair.
In People v. Kordish, the Defendant was a twenty-two year old guy with a drug habit. Kordish sold drugs, 21 grams of cocaine, to an undercover officer while he was on probation for a prior conviction (same offense). The defendant absconded, failing to appear in court on the scheduled trial date. In 1992, the Defendant was convicted in a nonjury trial and sentenced to an indeterminate term of prison, eight to sixteen years. The defendant had left and went to Florida. He was arrested (in Florida) in 2009 and incarcerated until 2012, when he was returned to New York. Once returned, the Court imposed the 1992 sentence.
“An intermediate appellate court has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range” (People v Delgado, 80 NY2d 780, 783; see CPL 470.15[b]; People v Thompson, 60 NY2d 513, 519). Our sentencing review power “may be exercised, if the interest of justice warrants, without deference to the sentencing court” (People v Delgado, 80 NY2d at 783 [emphasis added]). In considering whether a sentence is unduly harsh or severe under the circumstances, we exercise our discretion giving consideration to, “among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation, and deterrence” (People v Farrar, 52 NY2d 302, 305; see People v Suitte, 90 AD2d 80, 83-84).