People v. Mussalam , 63 A.D.2d 596 ( 1978 )

Judgment, Supreme Court, Bronx County, rendered August 8, 1977, unanimously modified, on the law, and as a matter of discretion in the interest of justice, to reduce the sentence imposed to an indeterminate term with a maximum of seven years, and otherwise affirmed. Defendant appeals from a conviction upon a plea of guilty to the crime of arson in the third degree and contends that the 3 Vs to 10-year sentence imposed was excessive. Defendant admitted at the time the plea was entered that he acted in concert with John Lewis, Jr., Pedro Cordova and Audeh Hamden, intending to set fire to premises 16 West 177th Street, Bronx. On January 15, 1976, defendant drove the three men to the building with knowledge that they intended to set fire to the store. He was thereafter arrested two or three blocks from the scene. Sentence was imposed on August 8, 1977, shortly after the blackout which paralyzed this city and which was accompanied by a wave of arson and looting. We find, from review of the sentence minutes, the events following the blackout may have unduly influenced the court in imposing sentence. Although the court relied in part on defendant’s alleged extensive criminal record, it appears that defendant had but one prior conviction, a misdemeanor, for unlawful possession of a weapon in Texas in December, 1972, for which he was fined $100. Defendant’s participation in the crime was minimal in comparison with the other participants who were more directly and intimately involved in the actual arson. Although defendant drove the men to the scene with knowledge that they intended to set fire to the building, he did not actually start the fire. Nevertheless, defendant received a much greater sentence than all but one of the active participants. He received the most extensive minimum term. Mahmoud Zahran, the owner of the store, who would have recovered upon available insurance coverage had arson not been established, was sentenced to 0 to 6 years. Audeh Hamden, who contracted to set fire and who had hired Cordova and Lewis, was sentenced to 2 to 15 years. Cordova, who set the fire, received probation, whereas Lewis, who assisted in the act, was sentenced to 0 to 4 years. Moreover, it appears that during plea bargaining negotiations, the Assistant District Attorney discussed with defendant a recommendation by the People of a sentence from 0 to 7 years. This was communicated to the court prior to imposition of sentence. Although the court made no such commitment and acted within its province in rejecting the People’s recommendation, we find that the sentence imposed was excessive to the extent indicated. Concur—Birns, J. P., Fein, Markewich and Sullivan, JJ.