Opinion
443 KA 19-00250
06-09-2023
The PEOPLE of the State of New York, Respondent, v. SHEA'HONNIE D., Defendant-Appellant. (Appeal No. 1.)
CAMBARERI & BRENNECK, SYRACUSE (MELISSA K. SWARTZ OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
CAMBARERI & BRENNECK, SYRACUSE (MELISSA K. SWARTZ OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, MONTOUR, AND OGDEN, 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 six years and a period of postrelease supervision of 2½ years, and as modified the judgment is affirmed.
Memorandum: On a prior appeal, we affirmed the judgment convicting defendant upon her plea of guilty of attempted robbery in the first degree ( Penal Law §§ 110.00, 160.15 [2] ). We subsequently granted defendant's motion for a writ of error coram nobis on the ground that appellate counsel had failed to raise an issue on appeal that may have merit, i.e., whether the sentence is unduly harsh and severe, and we vacated our prior order. We now consider the appeal de novo.
We agree with defendant that she did not validly waive her right to appeal. 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 is invalid because County Court's oral colloquy mischaracterized it as an "absolute bar" to the taking of an appeal ( People v. Thomas , 34 N.Y.3d 545, 565, 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] ; cf. People v. Cromie , 187 A.D.3d 1659, 1659, 133 N.Y.S.3d 167 [4th Dept. 2020], lv denied 36 N.Y.3d 971, 138 N.Y.S.3d 488, 162 N.E.3d 717 [2020] ). We note that the better practice is for the court to use the Model Colloquy, which "neatly synthesizes ... the governing principles" ( Thomas , 34 N.Y.3d at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see NY Model Colloquies, Waiver of Right to Appeal).
Furthermore, the written waiver executed by defendant did not contain any clarifying language to correct deficiencies in the oral colloquy. Rather, it perpetuated the oral colloquy's mischaracterization of the waiver of the right to appeal as an absolute bar to the taking of a first-tier direct appeal and even stated that the rights defendant was waiving included the "right to have an attorney appointed" if she could not afford one and the "right to submit a brief and argue before an appellate court issues relating to [her] sentence and conviction" (see Thomas , 34 N.Y.3d at 554, 564-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Where, as here, the "trial court has utterly ‘mischaracterized the nature of the right a defendant was being asked to cede,’ [this] ‘[C]ourt cannot be certain that the defendant comprehended the nature of the waiver of appellate rights’ " ( id. at 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).
Because the purported waiver of the right to appeal is unenforceable, it does not preclude our review of defendant's challenge to the court's refusal to grant her youthful offender status (see People v. Johnson , 182 A.D.3d 1036, 1036, 120 N.Y.S.3d 902 [4th Dept. 2020], lv denied 35 N.Y.3d 1046, 127 N.Y.S.3d 849, 151 N.E.3d 530 [2020] ). Nevertheless, we conclude that the court did not abuse its discretion in declining to adjudicate defendant a youthful offender (see People v. Simpson , 182 A.D.3d 1046, 1047, 120 N.Y.S.3d 910 [4th Dept. 2020], lv denied 35 N.Y.3d 1049, 127 N.Y.S.3d 823, 151 N.E.3d 504 [2020] ; People v. Lewis , 128 A.D.3d 1400, 1400, 7 N.Y.S.3d 800 [4th Dept. 2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ; see generally People v. Minemier , 29 N.Y.3d 414, 421, 57 N.Y.S.3d 696, 80 N.E.3d 389 [2017] ). In addition, having reviewed the applicable factors pertinent to a youthful offender determination (see People v. Keith B.J. , 158 A.D.3d 1160, 1160, 70 N.Y.S.3d 291 [4th Dept. 2018] ), we decline to exercise our interest of justice jurisdiction to grant her such status (see Simpson , 182 A.D.3d at 1047, 120 N.Y.S.3d 910 ; Lewis , 128 A.D.3d at 1400-1401, 7 N.Y.S.3d 800 ; cf. Keith B.J. , 158 A.D.3d at 1161, 70 N.Y.S.3d 291 ).
We agree with defendant, however, that the sentence is unduly harsh and severe, and we therefore modify the judgment as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b] ) by reducing the sentence to a determinate term of imprisonment of six years (see Penal Law § 70.02 [3] [b] ) and a period of postrelease supervision of 2½ years (see § 70.45 [2] [f]).