Opinion
09-23-2015
The PEOPLE, etc., 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 of counsel), for respondent.
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 of counsel), for respondent.
Opinion Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Brennan, J.), imposed July 21, 2010, upon his conviction for violation of probation, upon his plea of guilty, the sentence being a definite term of one year of imprisonment.
ORDERED that the sentence is modified, as a matter of discretion in the interest of justice, 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, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. DeSimone, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ) and, thus, does not preclude him from seeking a reduction of his sentence in the interest of justice.
Since the defendant has served his one-year term of imprisonment, the question of whether the one-year sentence should be reduced would ordinarily be academic (see People v. Nicholson, 31 A.D.3d 468, 817 N.Y.S.2d 638 ). However, because the one-year sentence may have potential immigration consequences (see People v. Cardenas, 123 A.D.3d 940, 999 N.Y.S.2d 146 ; People v. Bakare, 280 A.D.2d 679, 721 N.Y.S.2d 242 ; People v. Cuaran, 261 A.D.2d 169, 689 N.Y.S.2d 392 ), the question of whether the sentence should be reduced is not academic (see People v. Cardenas, 123 A.D.3d 940, 999 N.Y.S.2d 146 ; Matter of Jonathan E., 119 A.D.3d 943, 989 N.Y.S.2d 876 ).
Considering all the relevant circumstances of this case, including the potential immigration consequences to the defendant, we conclude that his sentence should be reduced by one day (see People v. Weston, 98 A.D.3d 1066, 1067, 950 N.Y.S.2d 599 ; People v. Bakare, 280 A.D.2d 679, 721 N.Y.S.2d 242 ; People v. Cuaran, 261 A.D.2d 169, 689 N.Y.S.2d 392 ; cf. People v. Serrano, 129 A.D.3d 997, 10 N.Y.S.3d 448 ).
ENG, P.J., RIVERA, HALL, AUSTIN and COHEN, JJ., concur.