        SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department

763
KA 13-00657
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MISTY L. PRIAL, DEFENDANT-APPELLANT.


DANIEL M. GRIEBEL, BUFFALO, FOR DEFENDANT-APPELLANT.

KEITH A. SLEP, DISTRICT ATTORNEY, BELMONT, FOR RESPONDENT.


     Appeal from a judgment of the Allegany County Court (Thomas P.
Brown, J.) rendered December 19, 2012. The judgment revoked
defendant’s sentence of probation and imposed a sentence of
imprisonment.

     It is hereby ORDERED that the judgment so appealed from is
affirmed.

     Memorandum: Defendant appeals from a judgment revoking the
period of probation imposed upon her conviction of criminal sale of a
controlled substance in the third degree and sentencing her to a
determinate term of imprisonment. Contrary to defendant’s contention,
the sentence is not unduly harsh or severe. Although defendant had no
prior felony convictions, she had numerous misdemeanor convictions,
and indeed the instant probationary sentence was to run concurrently
with another term of probation imposed on one such misdemeanor.
Furthermore, following this conviction involving the sale of drugs,
defendant repeatedly violated the terms of her probationary sentence
by using opiates and other illegal drugs, failed to complete drug
programs and to comport with her Drug Court contract, abandoned her
children with a relative, and absconded from supervision. Contrary to
the dissent, we conclude that “the fact that . . . the codefendant[]
received [a] lesser sentence[ is not germane because] the
circumstances surrounding the sentencing of [the codefendant] were
different” (People v Purcell, 8 AD3d 821, 822; see People v Versaggi,
296 AD2d 429, 430, lv denied 98 NY2d 714; People v Davis, 203 AD2d
818, 818, lv denied 84 NY2d 824).

     All concur except FAHEY and SCONIERS, JJ., who dissent and vote to
modify in accordance with the following Memorandum: We respectfully
dissent inasmuch as we agree with defendant that the sentence of
imprisonment imposed is unduly harsh and severe. Although defendant
was convicted of a class B felony, her crime is a nonviolent one that
arises from her sale of five morphine pills to a confidential
                                 -2-                           763
                                                         KA 13-00657

informant for a total of $50. Defendant has a criminal history that,
albeit lengthy, includes no prior felony convictions. We note that
the record reflects that defendant’s former husband was a codefendant
who was charged with the same crimes as defendant with respect to the
drug transaction at issue but who received a much more lenient
sentence than did defendant. Even considering defendant’s multiple
failures to complete drug court treatment, we cannot conclude that
what amounts to a sentence of five years of incarceration for the sale
of five morphine pills is just under the circumstances of this case.
We would therefore modify the judgment as a matter of discretion in
the interest of justice by reducing the sentence of imprisonment to a
determinate term of two years of incarceration, to be followed by the
two years of postrelease supervision imposed by County Court.




Entered: June 20, 2014                          Frances E. Cafarell
                                                Clerk of the Court
