Opinion
182 KA 14-01214.
03-24-2017
The PEOPLE of the State of New York, Respondent, v. Terrance FOREST, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Sara A. Goldfarb of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Sara A. Goldfarb of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the second degree (Penal Law § 160.10 [2 ][b] ). We agree with defendant that his waiver of the right to appeal, even if valid, "does not foreclose review of [his] contention that he was denied due process in the hearing conducted to determine if he violated a condition of the plea agreement," thereby warranting the imposition of an enhanced sentence (People v. Butler, 49 A.D.3d 894, 895, 854 N.Y.S.2d 506, lv. denied 10 N.Y.3d 932, 862 N.Y.S.2d 339, 892 N.E.2d 405, reconsideration denied 11 N.Y.3d 830, 868 N.Y.S.2d 605, 897 N.E.2d 1089 ; see People v. Scott, 101 A.D.3d 1773, 1773, 957 N.Y.S.2d 554, lv. denied 21 N.Y.3d 1019, 971 N.Y.S.2d 502, 994 N.E.2d 398 ; People v. Peck, 90 A.D.3d 1500, 1501, 936 N.Y.S.2d 797 ). We further conclude that defendant's contention that County Court failed to conduct a sufficient inquiry pursuant to People v. Outley , 80 N.Y.2d 702, 594 N.Y.S.2d 683, 610 N.E.2d 356 to determine whether there was a legitimate basis for defendant's post plea arrest is reviewable inasmuch as "his arguments regarding the alleged sentencing error are readily discernible from the hearing transcript" (People v. Albergotti, 17 N.Y.3d 748, 750, 929 N.Y.S.2d 18, 952 N.E.2d 1010 ). On the merits, however, we reject that contention. The record establishes that "there was a sufficient inquiry made to support ‘the existence of a legitimate basis for the arrest’ " (People v. Fumia, 104 A.D.3d 1281, 1281–1282, 960 N.Y.S.2d 826, lv. denied 21 N.Y.3d 1004, 971 N.Y.S.2d 255, 993 N.E.2d 1278, quoting Outley, 80 N.Y.2d at 713, 594 N.Y.S.2d 683, 610 N.E.2d 356 ; see People v. Ayen, 55 A.D.3d 1305, 1306, 864 N.Y.S.2d 591 ). Although defendant stated during the Outley hearing that he was not involved in the robbery that led to the postplea arrest, the fact "[t]hat the court chose not to credit defendant's account of events is not a ground for reversal" (Albergotti, 17 N.Y.3d at 750, 929 N.Y.S.2d 18, 952 N.E.2d 1010 ).
We agree with defendant that the waiver of the right to appeal is invalid because the minimal inquiry made by the court was "insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" (People v. Box, 96 A.D.3d 1570, 1571, 946 N.Y.S.2d 525, lv. denied 19 N.Y.3d 1024, 953 N.Y.S.2d 557, 978 N.E.2d 109 [internal quotation marks omitted] ). Indeed, on this record there is no basis upon which to conclude that the court ensured "that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
We also agree with defendant that the imposition of a determinate term of incarceration of 15 years, the maximum allowed for a class C violent felony, is unduly harsh and severe under the circumstances of this case. We note that our "sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court" (People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675 ), and that we may " ‘substitute our own discretion for that of a trial court which has not abused its discretion in the imposition of a sentence’ " (People v. Johnson, 136 A.D.3d 1417, 1418, 25 N.Y.S.3d 510, lv. denied 27 N.Y.3d 1134, 39 N.Y.S.3d 116, 61 N.E.3d 515 ). We conclude that a reduction in the sentence is appropriate and, as a matter of discretion in the interest of justice, we modify the judgment by reducing the sentence to a determinate term of incarceration of 10 years (see CPL 470.20[6] ; Johnson, 136 A.D.3d at 1418, 25 N.Y.S.3d 510 ), to be followed by the five years of postrelease supervision imposed by the court.
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence to a determinate term of incarceration of 10 years and as modified the judgment is affirmed.