People v. Brisman
Issue before the Court: Whether a defendant-appellant must show “extraordinary circumstances” or an “abuse of discretion” in order to establish that his sentence is excessive and should be reduced in the interest of justice.
Factual Background: Mr. Brisman was convicted of first-degree promoting prison contraband and sentenced to an indeterminate term of three-and-one-half to seven years’ incarceration. On appeal, he asked the Appellate Division, Third Department to reduce his sentence in the interest of justice. They declined because he had not demonstrated any “extraordinary circumstances or abuse of discretion warranting a reduction of the sentence.” People v. Brisaman, 200 A.d.3d 1219 (3d Dep’t 2021).
Judge Troutman, joined by Chief Judge Wilson and Judges Rivera and Halligan rejected this standard, holding that it was inconsistent with the Appellate Division’s “broad, plenary power to reduce the sentence without deference to the sentencing court.” They remitted to the Third Department for reconsideration of the excessive sentence claim in light of the correct standard.
Judge Cannataro authored a dissent joined by Judges Singas and Garcia. They agreed that the Appellate Division need not defer to the sentencing court but maintained that the Third Department’s language did not suggest they had misapprehended their authority to exercise their independent discretion.
CAL Observes: This case resolves a longstanding issue relating to the standard the Appellate Division should apply when deciding whether a sentence is excessive and should be reduced in the interest of justice. The issue stems from the Court’s decision in People v. Delgado, 80 N.Y.2d 780, 783 (1992). In that case, the Court made clear that the Appellate Division has “broad, plenary power to modify a sentence that is unduly harsh or severe,” and that the Appellate Division need not “defer[] to the sentencing court.” But it held that the Appellate Division’s refusal to reduce sentences because there was no “abuse of discretion” did not suggest that it “misapprehend[ed] its power” to reduce the sentences. Id. The “abuse of discretion” language was merely a way of expressing the Appellate Division’s conclusion that “the sentences” were not “unduly harsh or severe.” Id.
In Delgado’s wake, the Appellate Division, Third Department consistently refused to reduce sentences on the grounds that the sentencing court had not abused its discretion. The Court of Appeals had attempted to decide whether these cases applied the proper standard multiple times in the last few years but failed to give a clear answer. See People v. Baldwin, 39 N.Y.3d 1097 (2023) (dismissing as moot appeal which presented the question); People v. Ba, 39 N.Y.3d 1130 (2023) (remitting to Appellate Division to clarify the basis of its ruling rejecting excessive fine claim).
Brisman presented the question squarely. The Court held that a defendant-appellant “need not demonstrate extraordinary circumstances or abuse of discretion by the sentencing court in order to obtain a sentence reduction,” and remitted the case to the Appellate Division for review under the proper standard.
The practical effects of the Court’s ruling are somewhat hard to parse. Unfortunately, the Court did not take the obvious step of overruling Delgado. Instead, Judge Troutman distinguished Delgado on the grounds that, in that case, the Appellate Division said explicitly that it was holding that the sentence was not “excessive under the circumstances,” but failed to do so here. Judge Troutman also examined some recent Third Department decisions to conclude that the court truly was applying a different standard when it was analyzing whether the sentencing court had abused its discretion. This leaves open the possibility that an Appellate Division court could apply the correct standard and state that the sentencing court did not abuse its discretion.
Sill, it seems unlikely that Appellate Division courts will use “abuse of discretion” language in the future. As the Court of Appeals noted, the Third Department had already abandoned the practice by the time Brisman was decided. Likewise, the case helpfully clarifies that “ordinary” mitigating factors, such as a client’s age, health, and remorse, can provide sufficient reason to reduce a sentence.
It’s also worth noting that the ruling may have applications to any claim made in the interest of justice. An “abuse of discretion standard,” the Court held, is “inconsistent” with the Appellate Division’s “interest of justice jurisdiction.” This suggests that any determination made by the Appellate Division as part of its exercise of that jurisdiction should be made de novo.