The man who admitted to abusing 4-year-old Xctasy Garcia is seeking a reduction in the prison sentence he agreed to in a plea bargain last year.
The appeal by Jose Munoz to have his 17-year prison term cut to 10 years was heard this morning in the Appellate Division of state Supreme Court. Through his attorney, Susan Lyn Preston, Munoz is arguing that prosecutors incorrectly calculated the sentence included in his deal.
Preston did not appear in court this morning, but in her filing, she argued that Munoz was sentenced to consecutive 7-year terms for two counts of assault when he should have been given concurrent terms because the counts involved a single incident where he nearly blinded the child and also broke her arm.
“There is nothing in the language of [the counts] that suggest that [Munoz] committed two separate and distinct acts,” Preston argued in her appeal.
Alfred Chapleau, chief assistant Schenectady County district attorney, argued that it was understood throughout the legal process that the counts resulted from two separate acts, right up to Munoz’s sentencing by Schenectady County Court Judge Karen Drago. Drago gave Munoz the maximum sentence allowed in the plea bargain.
Munoz pleaded guilty last January to three counts of second-degree assault in full satisfaction of a 20-count indictment containing charges of first-degree assault and attempted murder. He could have faced 25 years in prison if convicted by a jury.
Munoz’s one-time girlfriend, Delia Hernandez, who is the mother of Xctasy, now 6, was sentenced to 7 years in prison after pleading guilty to second-degree abuse.