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State of New York

Court of Appeals This memorandum is uncorrected and subject to 

revision before publication in the New York Reports.

No. 15 

The People &c.,

 Respondent,

 v.

Mamadou Ba, 

 Appellant.

Lauren E. Jones, for appellant.

Meghan McLoughlin, for respondent.

Order insofar as appealed from reversed and case remitted to the Appellate Term, First 

Department, for a determination whether defendant's sentence is unduly harsh or severe 

(CPL 470.45 [6] [b]). Acting Chief Judge Cannataro and Judges Rivera, Garcia, Wilson, 

Singas and Troutman concur, Judge Garcia in a concurring opinion, in which Acting 

Chief Judge Cannataro and Judge Singas concur and Judge Troutman in a separate 

concurring opinion, in which Judges Rivera and Wilson concur.

Decided March 21, 2023
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GARCIA, J. (concurring):

I agree with my concurring colleagues that the case should be remitted for the 

Appellate Term to review defendant’s sentence. While I do not assume that the Appellate 
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Term misapprehended its plenary power to reduce a sentence as “unduly harsh or severe” 

(CPL 470.15 [6]), I agree that the better course in this unique case is to have that court 

clarify its basis for declining to reduce defendant’s $500 fine. 

Defendant, charged with various crimes related to the selling of counterfeit designer 

handbags, pleaded guilty to one count of unlicensed general vending, a misdemeanor 

(Administrative Code of the City of NY § 20-453). Violations of that section are 

“punishable by a fine of not less than two hundred fifty dollars nor more than one thousand 

dollars, or by imprisonment for not more than three months or by both such fine and 

imprisonment” (Administrative Code of the City of NY § 20-472). Defendant was offered 

a choice of sentence: three days of community service or a $500 fine. He chose to pay the 

fine. Defendant appealed, arguing, among other things, that his sentence was “harsh and 

unnecessary” and was “likely to create a financial hardship for him.”

As reflected in the statute, intermediate appellate courts possess the discretionary 

power to modify or reduce a sentence in the interest of justice where the sentence is unduly 

harsh or severe under the circumstances (NY Const, art. VI, §§ 4 [k], 7 [a], 8 [a]; see CPL 

470.15 [6] [b]; People v Pollenz, 67 NY2d 264, 267-269 [1986]; People v Thompson, 60 

NY2d 513, 519-520 [1983]). This discretionary sentence review power, which is not 

subject to legislative restriction (Pollenz, 67 NY2d at 268), is “broad” and “plenary” and 

applies even where a sentence is within the permissible statutory range or is the result of a 

bargained-for plea (People v Delgado, 80 NY2d 782, 783 [1992]; Thompson, 60 NY2d at 

520). When affirming a sentence, the appellate court is not required to provide a basis for 
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declining to exercise its interest of justice jurisdiction to modify or reduce a sentence (CPL 

470.25 [1]; see People v Mingo, 9 NY3d 938 [2007]). 

Here, the Appellate Term “perceive[d] no basis for reducing the fine” (73 Misc 3d 

148[A], 2022 NY Slip Op 50004[U] [App Term, 1st Dept 2022]). The Court stated that 

“[d]efendant received the precise sentence for which he had bargained, which was within 

the permissible statutory range” (id.).1 As my concurring colleagues note, the negotiated 

sentence may provide support for the court’s conclusion that it is not unduly harsh or severe 

(Troutman, J., concurring op at 7). That is especially true where, as here, the sentence was 

a fine and the defendant chose to pay that amount over the option to perform community 

service. My concurring colleagues would read the language of the Appellate Term decision 

to mean the court believed itself bound to affirm the sentence merely because it was the 

result of a plea bargain (Troutman, J., concurring op at 8). I read the Appellate Term’s 

holding instead to mean that it did not find defendant’s sentence unduly harsh or severe 

under these circumstances (see Delgado, 80 NY2d at 783), but agree to remit to that court 

for clarification of the basis for its decision.

1 With respect to the Appellate Term’s reference to the permissible statutory range, 

appellate courts may reverse or modify an illegal sentence regardless of whether the issue 

was raised on appeal (see People v Price, 140 AD2d 927 [4th Dept 1988]; CPL 470.15 [2] 

[c]).
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TROUTMAN, J. (concurring):

On appeal to an intermediate appellate court, a criminal defendant may seek to 

invoke the court’s power to reduce the sentence—even one negotiated as part of a plea 

bargain—on the ground that such sentence is “unduly harsh or severe” (CPL 470.15 [6] 
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[b]; see People v Thompson, 60 NY2d 513, 520 [1983]). Here, the Appellate Term erred 

in treating the bargained-for nature of defendant’s sentence as dispositive of his challenge 

to the severity of the sentence.

I.

In 2016, defendant was selling counterfeit designer handbags on a Manhattan street 

corner when the police arrested him and charged him with trademark counterfeiting in the 

third degree (Penal Law § 165.71), unlicensed general vending (Administrative Code of 

City of NY § 20-435), and failure to display a license (id. § 20-461). Defendant pleaded 

guilty to one count of unlicensed general vending in exchange for a $500 fine and the 

dismissal of the remaining counts. Defendant contended on appeal that, among other 

things, the fine was “harsh,” “excessive,” and “unnecessary,” in part because during the 

pendency of the appeal the prosecutor’s office stopped prosecuting charges of unlicensed 

general vending. The Appellate Term rejected that contention: “We perceive no basis for 

reducing the fine. Defendant received the precise sentence for which he had bargained, 

which was within the permissible statutory range” (73 Misc 3d 148[A], 2022 NY Slip Op 

50004[U], at *1 [App Term, 1st Dept 2022]).

II.

The intermediate appellate courts have the power to vacate a sentence that falls 

outside the permissible statutory range on the ground that the “sentence was unauthorized, 

illegally imposed or otherwise invalid as a matter of law” (CPL 470.15 [4] [c]), and the 

courts have exercised that power regardless of whether either party addressed the illegality 
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on appeal (see e.g. People v Jones, 118 AD3d 1361, 1362 [4th Dept 2014]; People v Ryan, 

83 AD3d 1128, 1130 [3d Dept 2011]).

An entirely separate power is the intermediate appellate courts’ authority to reduce 

a criminal sentence as a matter of discretion in the interest of justice, which is an inherent 

power of those courts enshrined in the New York State Constitution (see NY Const, art VI, 

§ 4 [k]; People v Pollenz, 67 NY2d 264, 267-268 [1986]; Thompson, 60 NY2d at 520). 

This power is codified under CPL 470.15 (6) (b) and CPL 470.20 (6), the former of which 

provides that the intermediate appellate court may modify a judgment of conviction if the 

court finds that the “sentence, though legal, was unduly harsh or severe.” The question 

whether a sentence is unduly harsh or severe is addressed to the discretion of the 

intermediate appellate court (see Thompson, 60 NY2d at 519), which has “broad, plenary 

power” to reduce a sentence “without deference to the sentencing court” (People v 

Delgado, 80 NY2d 780, 783 [1992]).

The Appellate Division, as New York’s preeminent intermediate appellate court, 

has long understood its power to modify sentences as an important check on the sentencing 

court’s own broad discretion. Over a century ago, the Third Department lamented that 

“many an unjust sentence has been endured because counsel have failed to invoke the 

powers of the appellate tribunals to temper individual prejudices with judicial discretion” 

(People v Miles, 173 App Div 179, 182 [3d Dept 1916]). Some decades later, the Second 

Department, faced with a challenge to the severity of a plea-bargained sentence, observed 

that “[m]uch of the controversy and criticism swirling about the contemporary sentencing 

scene relates to inequitable disparities between sentences for the same or similar crimes” 
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(People v Suitte, 90 AD2d 80, 84-85 [2d Dept 1982]). The Court opined that the 

intermediate appellate court’s sentencing power “obviously is a useful means of 

diminishing sentencing disparity . . . and ensuring the imposition of fair sentences” (id. at 

85). Thus, the Court, although sensitive to the fact that its rulings would become guidelines 

for sentencing courts in future prosecutions, recognized its power to “substitute [its] own 

discretion for that of a trial court which has not abused its discretion in the imposition of a 

sentence” (id. at 86; accord People v Thomas, 194 AD3d 1405, 1406 [4th Dept 2021], lv 

denied 37 NY3d 1165 [2022]; People v Mitchell, 168 AD3d 531, 532 [1st Dept 2019]).

As Suitte suggests, this power is not diminished in plea-bargained cases. Indeed, 

when the legislature enacted a statute barring interest-of-justice review of negotiated 

sentences, this Court unanimously struck the enactment down as an unconstitutional 

curtailment of judicial power (see Pollenz, 67 NY2d at 267-268). A rule disqualifying 

negotiated sentences from review for harshness or severity would also be incongruous. 

The sentencing court itself is not bound by the terms of a plea bargain negotiated by the 

parties but must in all cases exercise its discretion and impose an “appropriate sentence . . . 

after due consideration given to, among other things, the crime charged, the particular 

circumstances of the individual before the court and the purpose of a penal sanction, i.e., 

societal protection, rehabilitation and deterrence” (People v Farrar, 52 NY2d 302, 305 

[1981]). An intermediate appellate court reviewing a defendant’s challenge to the severity 

of a negotiated sentence may similarly impose a lesser penalty and is not bound by the 

parties’ agreement (see Thompson, 60 NY2d at 520).
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Nor should it be. The vast majority of criminal sentences result from the plea 

bargaining process (see Hon. Jonathan Lippman, Foreword to New York State Association 

of Criminal Defense Lawyers [NYSACDL], The New York State Trial Penalty: The 

Constitutional Right Under Attack 3 [2021]), which has become an indispensable feature 

of our system of criminal justice (see Missouri v Frye, 566 US 134, 143-144 [2012] [“(P)lea 

bargains have become . . . central to the administration of the criminal justice system”]). 

“Plea and sentence negotiation further important policy considerations, conserving law 

enforcement, judicial and penal resources, and permitting the parties to avoid the 

uncertainties inherent in the lengthy process of charge, trial, sentence and appeals, thereby 

‘starting the offender on the road to possible rehabilitation’ as soon as practicable” (People 

v Avery, 85 NY2d 503, 506 [1995]). At the same time, “[t]he prosecutor has more control 

over life, liberty, and reputation than any other person in America” (Hon. Robert H. 

Jackson, Attorney Gen. of the United States, The Federal Prosecutor, Address at the 

Second Annual Conference of United States Attorneys 1 [Apr. 1, 1940], available at

https://www.justice.gov/sites/default/files/ag/legacy/2011/09/16/04-01-1940.pdf 

[accessed March 10, 2023]). Consequently, although plea bargaining involves negotiation, 

the parties to that negotiation are seldom on equal footing. Prosecutors have full discretion 

over what charges to bring and what offers to make (see I. Bennett Capers, The

Prosecutor’s Turn, 57 Wm & Mary L Rev 1277, 1296 [2016] [“The prosecutor’s outsized 

power is attributable in part to (their) almost unfettered discretion”]). Defendants, on the 

other hand, have far more to lose than prosecutors do—liberty, most significantly—which 

makes them unlikely to risk a lengthier sentence after an unsuccessful trial (see Vikrant P. 
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Reddy & R. Jordan Richardson, Why the Founders Cherished the Jury, 31 Fed Sentencing 

Rep 316, 318 [Apr./June 2019]; H. Mitchell Caldwell, Coercive Plea Bargaining: The 

Unrecognized Scourge of the Justice System, 61 Cath U L Rev 63, 72-73 [2011]; 

NYSACDL at 23-29). To be sure, plea bargaining affords benefits to many defendants in 

the form of swift resolution, dismissal of certain charges, and reduced sentencing exposure 

(see Frye, 566 US at 144). But the imbalance of power inevitably leads “to innocent 

defendants pleading guilty and to guilty defendants serving sentences disproportionate to 

their crimes” (Caldwell at 73; see Hon. Jed S. Rakoff, Why Innocent People Plead

Guilty, NY Review of Books [Nov. 20, 2014], available at

http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/

[accessed March 10, 2023]).

Sentence disparities result. Indeed, there is empirical evidence of “troubling racial 

disparities in plea-bargained cases,” not only in the severity of sentence but in the 

prosecutor’s willingness to offer defendants the chance to plead to reduced charges (Daniel 

S. McConkie, Jr., Plea Bargaining for the People, 104 Marq L Rev 1031, 1056 [2021]; see

Ram Subramanian et al., In the Shadows: A Review of the Research on Plea Bargaining

24-29 [Sept. 2020]; Carlos Berdejό, Criminalizing Race: Racial Disparities in PleaBargaining, 59 BC L Rev 1187, 1213-1238 [2018]; see also Ring v Arizona, 536 US 584, 

617 [2002, Breyer, J., concurring]). The Justices of our intermediate appellate courts—

experienced in reviewing cases on the cold page and assessing the severity of legions of 

sentences for the same classes of offenses—may be less likely to be affected by certain 
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kinds of bias that lead to sentencing disparities (see Michael M. O’Hear, Appellate Review 

of Sentences: Reconsidering Deference, 51 Wm & Mary L Rev 2123, 2141-2143 [2010]).

None of this is to say that the negotiated nature of a plea-bargained sentence is 

irrelevant. Rather, the fact that a defendant voluntarily agreed to a sentence can provide at 

least some support for a determination that the sentence is not “unduly harsh or severe 

under the circumstances” (Delgado, 80 NY2d at 783), and thus the intermediate appellate 

court may properly consider the bargained-for nature of the sentence, among other 

appropriate considerations, in determining whether the sentence is unduly harsh or severe

(see e.g. People v Rice, — AD3d —, 2023 NY Slip Op 00568, at *1 [4th Dept Feb. 3, 

2023]; People v Scott, — AD3d —, 2023 NY Slip Op 00589, at *1 [4th Dept Feb. 3, 2023]; 

People v Jeremiah, 186 AD3d 740, 741 [2d Dept 2020], lv denied 35 NY3d 1113 [2020]). 

However, the mere fact that the sentencing court imposed the sentence that a defendant 

bargained for is not dispositive of that defendant’s appellate challenge to the severity of 

the sentence.

III.

These principles in mind, we consider the order on appeal. The Appellate Term 

concluded that there was “no basis for reducing the fine” (73 Misc 3d 148[A], 2022 NY 

Slip Op 50004[U], at *1). Although the Court was not required to go further and set forth 

the basis for its conclusion (see CPL 470.25 [1]; see People v Mingo, 9 NY3d 938, 938 

[2007]), here, it did so, reasoning that “[d]efendant received the precise sentence for which 

he had bargained, which was within the permissible statutory range” (73 Misc 3d 148[A], 

2022 N.Y. Slip Op. 50004[U], *1). In other words, the sentence was legal and bargained-
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for. Certainly, the Appellate Term cannot be faulted for considering and addressing the 

legality of the sentence because the intermediate appellate courts “cannot allow an illegal 

sentence to stand” (Jones, 118 AD3d at 1362 [internal punctuation omitted]; see CPL 

470.15 [4] [c]). However, the legality of the sentence was irrelevant to the entirely separate 

issue of whether it was unduly harsh or severe (see CPL 470.15 [6] [b]), and it was 

improper for the Appellate Term to treat the bargained-for nature of defendant’s sentence 

as dispositive of his challenge to the severity of the sentence.