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

529
KA 13-01457
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

SCOTT D. STANLEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered August 1, 2013. The appeal was held by this
Court by order entered May 8, 2015, decision was reserved and the
matter was remitted to Genesee County Court for further proceedings
(128 AD3d 1472). The proceedings were held and completed.

     It is hereby ORDERED   that the judgment so appealed from is
unanimously modified as a   matter of discretion in the interest of
justice by directing that   the sentences shall run concurrently with
respect to each other and   as modified the judgment is affirmed.

     Memorandum: We previously held this case, reserved decision, and
remitted the matter for County Court to conduct a hearing to determine
whether defendant lied to the probation officer during his interview
for the presentence report (PSR), thereby violating a condition of his
sentence promise and authorizing the court to impose an enhanced
sentence (People v Stanley, 128 AD3d 1472). This case is before us
again following remittal.

     The probation officer who prepared defendant’s PSR testified at
the hearing that, at the outset of the interview, he asked defendant
to describe the nature of his sexual offenses. In response, defendant
accurately described his conduct with respect to one of the two
victims, admitting that he repeatedly had sexual intercourse with her
while she was less than 13 years old. With respect to the other
victim, however, defendant said that he merely touched the victim’s
breasts and did not go further because he could tell that she was
uncomfortable. Defendant further said that the incident with the
second victim was a “one-time thing.” Considering that defendant
admitted under oath when he pleaded guilty that he had sexual
intercourse with both victims, we agree with the court that defendant
lied to the probation officer when describing the nature of his
                                 -2-                           529
                                                         KA 13-01457

offenses, and that the court was therefore not bound by its sentence
promise. As noted in our prior decision, the court made clear that
its sentence promise was contingent upon, among other things,
defendant truthfully answering any questions asked of him by the
probation officer who prepared the PSR (id. at 1473).

     We agree with defendant, however, that the enhanced sentence
imposed by the court is unduly harsh and severe, and we therefore
exercise our power to modify the sentence as a matter of discretion in
the interest of justice (see CPL 470.15 [6] [b]). Pursuant to the
plea offer extended by the People, defendant was to be sentenced
concurrently to an aggregate prison term of ten years, plus a period
of postrelease supervision. At sentencing, the People initially
requested the promised sentence. After an off-the-record conference
at the bench, however, the prosecutor asked for an enhanced aggregate
sentence of 15 years based on defendant’s lie to the probation
officer. The court eventually sentenced defendant to 22 years in
prison, 12 more years than contemplated by the plea agreement and
seven more than requested by the People. We conclude that, although
defendant should suffer consequences for lying to the probation
officer, an additional five years in prison is sufficient for that
purpose. We therefore modify the sentences as a matter of discretion
in the interest of justice by directing that they be served
concurrently, rather than consecutively. The result is an aggregate
prison term of 15 years, i.e., the sentence requested by the People.




Entered:   June 17, 2016                        Frances E. Cafarell
                                                Clerk of the Court
