In People v Farrow, __AD3d , 2009 NY Slip Op 00737 [4th Dept 2/6/09], the Fourth Department’s decision raises questions as to how it envisions the scope of its powers to modify a negotiated sentence.

After holding that the defendant’s one sentence written waiver of appeal was invalid and that in any event that a valid waiver of the right to appeal would not encompass defendant's challenge to the severity of the sentence in this case inasmuch as the court failed to ]advise defendant of the sentencing possibilities , the Court held that “Nevertheless, we reject defendant's challenge to the severity of the sentence. "Defendant was sentenced in accordance with the plea bargain and should be bound by its terms" (People v McGovern, 265 AD2d 881, lv denied 94 NY2d 882). “

This decision makes no mention of the court decisions, including that of the Court of Appeals, which make clear that the broad, plenary power of the Appellate Division, includes the power to reduce a sentence even if the sentence imposed pursuant to a negotiated plea bargain. People v Delgado, 80 NY2d 780,783 (1992); People v Thompson, 91 AD2d 672 (2nd Dept. 1982), modified 60 NY2d 513 (1983); People v Suitte, 90 AD2d 80 (2nd Dept. 1982).

Perhaps one might think that these decisions were discussed and distinguished in McGovern, the decision quoted in Farrow. But McGovern, an earlier Fourth Department decision never cited nor distinguished these cases. Rather it merely quotes People v Zelke (203 AD2d 909), an earlier Fourth Department decision, which merely quoted People v Felman (141 AD2d 889) a decision of the Third Department which pre-dated the Court of Appeal decision in Delgado.

The Fourth Department last cited Delgado as a basis for reducing a negotiated sentence in 1996 in People v Sanchez (225 AD2d 1085 [4th Dept 1996]), in which the Court reduced a negotiated sentence from 8 1/3 year to life to 3 years to life. Since then the Court has never cited nor discussed Delgado in deciding whether it could or should reduce a negotiated sentence. This failure to expressly acknowledge the scope of its authoity to reduce negotiated sentences creates a questions as to whether the language of Farrow that defendant should be bound by the terms of his plea bargain represents an application of the Court’s discretion, as set forth in Delgado, or of a rejection of the very option of challenging a negotiated sentence on appeal?