Opinion
566 KA 18-01261
07-17-2020
The PEOPLE of the State of New York, Respondent, v. Cody JEFFORDS, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER 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 imprisonment of 19 years and five years of postrelease supervision, and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of manslaughter in the first degree ( Penal Law § 125.20 [1] ), defendant contends that he did not validly waive his right to appeal. We agree. The better practice is for the court to use the Model Colloquy, which "neatly synthesizes ... the governing principles" ( People v. Thomas , 34 N.Y.3d 545, 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], citing NY Model Colloquies, Waiver of Right to Appeal, http://www.nycourts.gov/judges/cji/8-Colloquies/Waiver% 20of% 20Right% 20to% 20Appeal.pdf). Here, in describing the nature of defendant's right to appeal and the breadth of the waiver of that right, County Court incorrectly stated that defendant could not "appeal this case to a higher court; it would end here at the time of sentence" and that defendant was "waiving any appellate issues ... [i.e.,] any and all legal issues." Although no "particular litany" is required for a waiver of the right to appeal to be valid ( People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Johnson [Appeal No. 1], 169 A.D.3d 1366, 1366, 92 N.Y.S.3d 770 [4th Dept. 2019], lv denied 33 N.Y.3d 949, 100 N.Y.S.3d 165, 123 N.E.3d 824 [2019] ), defendant's waiver of the right to appeal was invalid because the court mischaracterized it as an "absolute bar" to the taking of an appeal ( Thomas , 34 N.Y.3d at 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).
Additionally, we are unable to determine whether the written appeal waiver purportedly signed by defendant at the plea colloquy corrected any defects in the court's oral colloquy because it was not included in the record on appeal. In any event, "[t]he court did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it" ( People v. Bradshaw , 18 N.Y.3d 257, 262, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; see People v. Mobayed , 158 A.D.3d 1221, 1222, 70 N.Y.S.3d 267 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ).
Defendant contends that the court did not make an appropriate inquiry into his request for a substitution of counsel. Assuming, arguendo, that this contention is not foreclosed by his guilty plea because it "implicates the voluntariness of the plea" ( People v. Morris , 94 A.D.3d 1450, 1451, 942 N.Y.S.2d 725 [4th Dept. 2012], lv denied 19 N.Y.3d 976, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] ), we nevertheless conclude that "defendant abandoned his request for new counsel when he ‘decid[ed] ... to plead guilty while still being represented by the same attorney’ " ( People v. Guantero , 100 A.D.3d 1386, 1387, 953 N.Y.S.2d 438 [4th Dept. 2012], lv denied 21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278 [2013] ; see People v. Coleman , 178 A.D.3d 1377, 1378, 112 N.Y.S.3d 679 [4th Dept. 2019] ; People v. Barr , 169 A.D.3d 1427, 1427-1428, 92 N.Y.S.3d 803 [4th Dept. 2019], lv denied 33 N.Y.3d 1028, 102 N.Y.S.3d 526, 126 N.E.3d 176 [2019] ).
We agree with defendant, however, that the 24-year determinate sentence is unduly harsh and severe considering, inter alia, defendant's background, genuine show of remorse, and lack of prior criminal history. Thus, we modify the judgment as a matter of discretion in the interest of justice by reducing the sentence to a determinate term of imprisonment of 19 years and five years of postrelease supervision, which falls within the sentence range negotiated by the parties (see CPL 470.15 [6] [b] ).