People v. Lopez ( 1991 )

Appeal by the defendant, as limited by her brief, from (1) a sentence of the Supreme Court, Queens County (Posner, J.), imposed November 30, 1989, upon her conviction of criminal sale of a controlled substance in the third degree (two counts) under Indictment No. 10817/89, upon a jury verdict, the sentence being two concurrent indeterminate terms of imprisonment of 6 to 12 years, and (2) an amended sentence of the same court, also imposed November 30, 1989, revoking a sentence of probation previously imposed by the same court (Clabby, J.), upon a finding that she had violated a condition thereof, upon her plea of guilty, and imposing a term of imprisonment upon her previous conviction of criminal sale of a controlled substance in the fifth degree under Indictment No. 6584/87, the sentence being an indeterminate term of imprisonment of 1 to 3 years to run consecutively to the terms of imprisonment imposed under Indictment No. 10817/89.

Ordered that the sentence and amended sentence are modified, as a matter of discretion in the interest of justice, by reducing the two concurrent indeterminate terms of imprisonment of 6 to 12 years imposed under Indictment No. 10817/89 to two concurrent indeterminate terms of imprisonment of 5 to 10 years and providing that the term of imprisonment imposed under Indictment No. 6584/87 shall run concurrently therewith; as so modified, the sentence and amended sentence are affirmed.

The record does not support the defendant’s claim that she was improperly punished more severely solely because she exercised her right to a trial rather than plead guilty (see, People v Pena, 50 NY2d 400, 411-412, cert denied 449 US 1087). However, based on our independent review of all the proper factors to be considered, we conclude that the sentence should be reduced to the extent indicated in the interest of justice (People v Suitte, 90 AD2d 80). Kunzeman, J. P., Eiber, Miller and Ritter, JJ., concur.