People v. Nickel

Carpinello, J. (concurring in part and dissenting in part).

I dissent solely on the issue of sentence. In my view, both the original sentence imposed, an aggregate prison term of 54 years, as well as the majority’s modification thereof to an aggregate prison term of 32 years, are harsh and excessive. While I do not in any way minimize defendant’s abhorrent conduct toward ei*874ther victim, I do not think it warrants maximum, consecutive sentencing, even as modified by the majority (see People v Morin, 192 AD2d 791 [1993], lv denied 81 NY2d 1077 [1993]). Under equally offensive or even more egregious facts than at issue here, courts have imposed markedly lower sentences (see e.g. People v Munroe, 307 AD2d 588 [2003], lv denied 100 NY2d 644 [2003]; People v Parker, 307 AD2d 538 [2003], lvs denied 100 NY2d 644 [2003], 2 NY3d 744 [2004]; People v Paige, 289 AD2d 872 [2001], lv denied 97 NY2d 759 [2002]; People v Johnson [Raggs] [Moore], 268 AD2d 891 [2000], lvs denied 94 NY2d 921, 923, 924 [2000]; People v Morin, supra). Thus, I believe concurrent sentences aggregating 25 years would be sufficient under the circumstances.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by directing that defendant’s sentences for sodomy in the first degree, aggravated sexual abuse in the second degree, sexual abuse in the first degree and endangering the welfare of a child under counts 1, 2, 5 and 6 of the indictment run concurrently to one another and consecutively to the sentence for sexual abuse in the first degree under count 4 of the indictment; and, as so modified, affirmed.