Opinion
842 KA 18-02106
11-13-2020
The PEOPLE of the State of New York, Respondent, v. Victor LONG, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CURRAN, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.), rendered September 7, 2018. The judgment convicted defendant upon his plea of guilty of criminal possession of a weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law and as a matter of discretion in the interest of justice by reducing the period of postrelease supervision to 2½ years and as modified the judgment is affirmed. Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), defendant contends that his waiver of the right to appeal is invalid, and that Supreme Court failed to apprehend the extent of its sentencing discretion. With respect to defendant's contention that he did not knowingly, intelligently and voluntarily waive the right to appeal, we reiterate that the better practice is for the court "to use the Model Colloquy, which ‘neatly synthesizes ... the governing principles’ " ( People v. Dozier , 179 A.D.3d 1447, 1447, 119 N.Y.S.3d 318 [4th Dept. 2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020], quoting People v. Thomas , 34 N.Y.3d 545, 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; see NY Model Colloquies, Waiver of Right to Appeal). Here, however, we see no reason to address defendant's challenge to the waiver of the right to appeal inasmuch as his "contention that the court failed to apprehend the extent of its sentencing discretion survives his waiver of the right to appeal and does not require preservation" ( People v. Dunham , 83 A.D.3d 1423, 1424-1425, 919 N.Y.S.2d 258 [4th Dept. 2011], lv denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097 [2011] ; see People v. Gardner , 162 A.D.3d 1758, 1759, 76 N.Y.S.3d 441 [4th Dept. 2018], lv denied 32 N.Y.3d 937, 84 N.Y.S.3d 864, 109 N.E.3d 1164 [2018] ; see generally People v. Irby , 158 A.D.3d 1050, 1051, 70 N.Y.S.3d 687 [4th Dept. 2018], lv denied 31 N.Y.3d 1014, 78 N.Y.S.3d 284, 102 N.E.3d 1065 [2018] ).
We agree with defendant that the court failed to apprehend its sentencing discretion. At the time of the plea, the court promised to impose the minimum sentence, which the court characterized as a determinate term of 3½ years' incarceration plus five years' postrelease supervision, when in fact the court had the authority to impose a period of postrelease supervision of between 2½ years and five years (see Penal Law § 70.45 [2] [f] ). Subsequently, the court reiterated several times during the proceedings that it had promised to impose the minimum sentence. "The failure of the court to apprehend the extent of its discretion deprived defendant of the right to be sentenced as provided by law" ( People v. Hager , 213 A.D.2d 1008, 1008, 625 N.Y.S.2d 972 [4th Dept. 1995] ; see People v. Slattery , 81 A.D.3d 1415, 1416, 916 N.Y.S.2d 871 [4th Dept. 2011] ). Inasmuch as the court clearly expressed its intention to impose the minimum sentence, we "exercise our power to reduce the sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b] ), in order to effectuate the sentence promised under the plea agreement" ( People v. Consilio , 74 A.D.3d 1809, 1810, 902 N.Y.S.2d 749 [4th Dept. 2010], lv denied 19 N.Y.3d 959, 950 N.Y.S.2d 111, 973 N.E.2d 209 [2012] ), and we therefore modify the judgment by reducing the period of postrelease supervision to 2½ years.