People v. Acosta

Judgment of the Supreme Court, New York County (Clifford Scott, J.), rendered June 27, 1986 after a jury trial, convicting the defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees, and *486sentencing him, as a second felony offender, to concurrent terms of 12 Vz to 25 years on the third degree sale and possession counts, and a term of one year on the seventh degree possession court, respectively, unanimously modified, on the law, the facts and as a matter of discretion in the interest of justice, to reduce the sentences upon the third degree criminal sale and possession counts to terms of from 5 to 10 years to be served concurrently, and except as so modified, affirmed.

Defendant claims that the joint trial and timing of the acceptance of codefendant’s guilty plea deprived him of the opportunity to call codefendant as a witness. We are unpersuaded by these arguments, especially because the defendant never moved for severance.

The sentences imposed by the trial court do, however, appear excessive, particularly in view of the fact that defendant’s codefendant and accomplice in the underlying $10 drug transaction was sentenced to a term of 2 to 4 years for conduct hardly different from that of the appellant. Notwithstanding the seriousness of the offenses involved, the sentences imposed were unduly harsh and should be reduced to the extent indicated. Concur—Murphy, P. J., Sullivan, Kassal, Wallach and Smith, JJ.