In February, this blog discussed the Fourth Department's failure to acknowledge its authority to reduce negotiated sentences.
The focal point of the column was the decision in People v Farrow, 59 AD3d 935 [4th Dept 2/6/09],in which 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). Farrow does not 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). Further, I noted that 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. I concluded by noting that 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.

In People v Garcia-Gual (__ AD3d __, 2009 NY Slip Op 08277 [11/13/09]) the Fourth Department, finally disavowed its holding in McGovern, cited Delgado, and set forth the scope of its authority to review and reduce negotiated sentences:

We agree with defendant that, in reviewing his contention, it is inappropriate for this Court to address whether the sentencing court abused its discretion (see generally People v Delgado, 80 NY2d 780, 782). Pursuant to CPL 470.15 (2) (c), we may modify a judgment "by reversing it with respect to the sentence" in the event that the sentence is illegal and, pursuant to CPL 470.15 (6) (b), we may reverse or modify a judgment as a matter of discretion in the interest of justice in the event that "the sentence, though legal, was unduly harsh or severe." We also agree with the further contention of defendant that the fact that he received the bargained-for sentence does not preclude him from seeking our discretionary review of his sentence pursuant to CPL 470.15 (6) (b) (see People v Smith, 32 AD3d 553, 554; see generally People v Pollenz, 67 NY2d 264; People v Thompson, 60 NY2d 513, 519-520). To the extent that prior decisions of this Court, including People v McGovern (265 AD2d 881, lv denied 94 NY2d 882), suggest a rule to the contrary, those decisions are not to be followed.

Mr. Garcia-Gual's sentence appeal was then rejected under the correct standard of review.