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

1133
KA 14-00838
PRESENT: SMITH, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JOHNNY Q. RUSSELL, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Richard C.
Kloch, Sr., A.J.), rendered January 10, 2014. 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
unanimously modified as a matter of discretion in the interest of
justice by reducing the sentence imposed to a determinate term of two
years, and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment revoking the
sentence of probation imposed upon his conviction of assault in the
second degree (Penal Law § 120.05 [2]) and sentencing him to a
determinate term of incarceration of four years, followed by a period
of three years of postrelease supervision. As the People correctly
concede, defendant’s waiver of the right to appeal at the plea
proceeding encompassed the original sentence of probation, but did not
encompass the sentence of incarceration imposed following his
violation of probation (see People v Johnson, 77 AD3d 1441, 1442, lv
denied 15 NY3d 953).

     We agree with defendant that the sentence of incarceration is
unduly harsh and severe under the circumstances of this case, and we
therefore modify the sentence as a matter of discretion in the
interest of justice to a determinate term of imprisonment of two
years, followed by a period of three years of postrelease supervision
(see generally CPL 470.15 [6] [b]).



Entered:    November 13, 2015                      Frances E. Cafarell
                                                   Clerk of the Court
