People v. Cordato

McCarthy, J.

(concurring in part and dissenting in part). We agree with the majority on all aspects of this case except the sentence. The determination of what constitutes an appropriate sentence lies within the trial court’s sound discretion (see People v Minor, 45 AD3d 885, 886 [2007], lv denied 10 NY3d 768 [2008]). Although this Court has the authority to modify, “as a matter of discretion in the interest of justice,” a legal sentence that is “unduly harsh or severe” (CPL 470.15 [6] [b]), we exercise that discretion sparingly. It is not our role to substitute the sentence that we would have imposed had that been our obligation in the first instance; instead, we are to review the sentence imposed by the court that was granted that initial authority. Absent extraordinary circumstances or a clear abuse of discretion by the sentencing court, we generally defer to that court — which observed the trial and was directly involved with all aspects of the case — and decline to interfere with its determination of what sentence to impose (see People v Somerville, 72 AD3d 1285, 1288-1289 [2010]; People v Maggio, 70 AD3d 1258, 1261 [2010], lv denied 14 NY3d 889 [2010]; People v Elliot, 57 AD3d 1095, 1097 [2008], lv denied 12 NY3d 783 [2009]). In this case, we should adhere to our general policy and decline to disturb the legal sentence imposed by County Court.

We note that the majority does not explicitly identify how the sentencing court clearly abused its discretion or what circumstances here are extraordinary, as opposed to factors that would simply support a lesser sentence {compare People v Fernandez, *131384 AJDSd 661, 662-664 [2011], with id. at 664-665 [Sweeny, J., dissenting]). The reasons the majority lists for diverging from our usual course and reducing defendant’s sentence include defendant’s lack of premeditation, her mental and emotional stress at the time of the crime, that her prior conviction was for a nonviolent crime, and that her actions purportedly do not represent typical “assaults committed by gangs” that were targeted by the statute she was found to have violated.

Regarding the last reason on that list, while the majority notes that defendant did not participate in what would typically be considered a gang assault, the Court of Appeals case cited by the majority does not support reduction of her sentence. In that case, the Court noted that “one of the primary purposes of the crime of gang assault was to recognize that when a victim is confronted by a group of individuals, rather than one individual, he or she is confronted with a more threatening, intimidating and dangerous situation that increases the possibility of escalating violence and physical harm” (People v Sanchez, 13 NY3d 554, 565 [2009]). Defendant was not a member of a street gang, but the statute is not limited to punish assaults by such individuals. Defendant’s actions, in conjunction with those of the other individuals who were present, created a “spontaneous and frenzied event[ ]” that was “dangerous precisely for [its] chaotic nature” (id. at 566); this is the type of conduct that the statute was enacted to prevent, or at least punish if committed. Regardless of the Legislature’s intent when enacting the statute, defendant was convicted of gang assault in the first degree and County Court was required to impose a sentence provided by law for commission of that crime. The court exercised its discretion in imposing such a sentence here.

The other reasons mentioned by the majority are valid considerations affecting sentencing, which could have resulted in the imposition of a lesser sentence. But countervailing factors are also present here to support the lawful sentence imposed by County Court. While defendant only had one prior conviction, the previous crime was a felony and she was still on probation at the time she committed this violent and fatal gang assault. Defendant was understandably upset and outraged when confronted with allegations that the victim sexually assaulted her child, which could have caused her to lash out without thinking, but defendant apparently did not attempt to contact the police and follow proper channels to deal with the victim’s alleged crimes. As the court noted during sentencing, defendant “at any time had the opportunity to cease and desist from the activity” constituting the crime for which she now *1314stands convicted. She declined to avail herself of that opportunity, choosing instead to serve as a self-appointed investigator, prosecutor, judge, jury and executioner for the victim. The victim was not charged, indicted, tried, convicted or sentenced for the crimes he allegedly committed and, under our system of justice, he was presumed innocent. Defendant and her codefendants deprived the victim of the rights afforded by our laws to those accused of committing crimes. Defendant, on the other hand, was duly convicted and sentenced in accordance with those rights. Society has a significant interest in discouraging vigilantism, which could be furthered by imposing lengthy sentences on those who take the law into their own hands.

Reducing such a sentence does not comport with the interest of justice. Nearly every victim of a crime or harmful act has family or loved ones who are emotionally affected by their death or injury. The majority’s stance here sends a message to those caring people that they will receive lighter sentences if they act on their vengeful urges and engage in self-help on behalf of their family or loved ones rather than working through the proper channels of our justice system. This message does not serve the interest of justice.

Defendant’s sentence cannot be reduced on the basis that she assaulted the victim as the result of extreme emotional stress when she strongly asserts that she did not assault the victim at all; these arguments are contradictory. Defendant’s version of the events changed over time to suit her own interests. When police first arrived at the scene, and before anyone knew that the victim’s condition would result in his death, defendant nearly boasted that she had attacked the victim. In her written statement to police, which was provided several hours after defendant’s violent and barbaric gang assault but before the victim’s critical condition was known, defendant again admitted her involvement and justified her actions because she believed that the victim had touched her daughter’s private parts. At trial, after the victim had died and defendant was charged with serious crimes, she testified that her confessions were false and she denied any participation in the assault. At sentencing, defendant apologized to the victim’s family and acknowledged that she should have intervened to stop the assault. She did not show true remorse or accept responsibility for her actions, however, because — consistent with her trial testimony but contrary to her statements to the police — she continued to deny her participation in the assault, stating, “I never touched him. I’m already doing time for a crime I didn’t do.” The jury could not have convicted defendant if it believed her protestations of *1315innocence; in other words, the jury considered her testimony false. As noted by the Probation Department in the presentence investigation report, defendant “ha[d] the presence of cognitions that serve to justify, support, or provide rationalizations for her criminal behavior [which] include moral justification, refusal to accept responsibility, blaming the victim, and excuse making that minimizes the seriousness and consequences of her criminal activity.” These factors militate against a reduced sentence (compare People v Boone, 287 AD2d 461, 461-462 [2001], lv denied 97 NY2d 727 [2002], with id. at 462-463 [Smith, J., concurring in part, dissenting in part]).

Although defendant was acquitted of manslaughter, the jury found her guilty of gang assault and her participation in that crime contributed to and resulted in the victim’s brutal death.1 Juries acquitted one codefendant of all charges, found another codefendant guilty of gang assault in the second degree and assault in the second degree, and found defendant guilty of gang assault in the first degree and assault in the second degree;2 thus, according to the juries, defendant was determined to be the most culpable among all of the participants in the savage beating that resulted in the victim’s death. After noting “the heinous and violent nature of the crime which [defendant] perpetrated,” County Court imposed the maximum sentence. While the majority apparently would not have chosen to impose the maximum sentence on defendant under the circumstances here if they were imposing the sentence in the first instance, the statute provides us with the authority to modify sentences that are “unduly harsh or severe,” not to sentence defendants de novo (CPL 470.15 [6] [b]). Because some factors present here support the maximum sentence and others would support a more lenient sentence, it would be contrary to our policy and precedents of deference to say that County Court — after weighing those factors — clearly abused its sentencing discretion or that extraordinary circumstances exist that would warrant this Court modifying the sentence in the interest of justice (see People v Lanfair, 18 AD3d 1032, 1034 [2005], lv denied 5 NY3d 790 [2005]). Therefore, we should defer to the sentencing court’s determination and affirm the lawful sentence imposed for defendant’s conviction of gang assault in the first degree.

. The official cause of death was “[mjultiple system organ failure due to severe closed head injuries with cerebral edema due to blunt force trauma.” Although, as the majority notes, the victim did not die until a week after the assault, he was comatose during that entire time and underwent brain surgery to relieve the pressure in his skull before he developed pneumonia and his organs failed.

. The majority correctly vacated defendant’s conviction for assault in the second degree.