Salvatore C. Adamo, New York, NY, for appellant.
Tendy, District Attorney, Carmel, NY (Melissa Lynch of
counsel), for respondent.
WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, HECTOR D. LASALLE,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
by the defendant from a judgment of the County Court, Putnam
County (Reitz, J.), rendered June 4, 2015, convicting her of
grand larceny in the third degree, upon her plea of guilty,
and sentencing her to an indeterminate term of imprisonment
of 2 to 7 years.
that the judgment is modified, as a matter of discretion in
the interest of justice, by reducing the sentence imposed
from an indeterminate term of imprisonment of 2 to 7 years to
an indeterminate term of imprisonment of 1 to 3 years; as so
modified, the judgment is affirmed.
defendant failed to preserve for appellate review her
contention that her plea was not knowing, voluntary, and
intelligent, since she did not move to vacate her plea or
otherwise raise this issue before the County Court (see
People v Lopez, 71 N.Y.2d 662, 665-666; People v
Smith, 146 A.D.3d 904, 904-905). In any event, the
defendant's contention regarding the knowing, voluntary,
and intelligent nature of her plea of guilty is without merit
(see People v Smith, 146 A.D.3d at 905).
defendant's claim of ineffective assistance of counsel is
based, at least in part, upon matter appearing outside the
record. In this case, it is not evident from the matter
appearing on the record that the defendant was deprived of
the effective assistance of counsel (see People v
Marryshow, 135 A.D.3d 964, 965; cf. People v
Crump, 53 N.Y.2d 824, 825; People v Brown, 45
N.Y.2d 852). Accordingly, a CPL 440.10 proceeding is the
appropriate forum for reviewing the defendant's claim in
its entirety (see People v Sanders, 148 A.D.3d 846;
People v Freeman, 93 A.D.3d 805, 806; People v
Maxwell, 89 A.D.3d 1108, 1109).
to the People's contention, under the circumstances of
this case, the defendant's waiver of her right to appeal
was invalid. A waiver "is effective only so long as the
record demonstrates that it was made knowingly, intelligently
and voluntarily" (People v Lopez, 6 N.Y.3d 248,
256; see People v Bradshaw, 18 N.Y.3d 257, 264;
People v Brown, 122 A.D.3d 133, 136). "An
appellate waiver meets this standard when a defendant has a
full appreciation of the consequences of such waiver"
(People v Bradshaw, 18 N.Y.3d at 264 [internal
quotation marks omitted]; see People v Sanders, 25
N.Y.3d 337; People v Brown, 122 A.D.3d at 136).
"[F]actors individual to each defendant, such as the
defendant's age, experience and background, ' may be
relevant in assessing the validity of a particular appeal
waiver" (People v Brown, 122 A.D.3d at 138,
quoting People v Bradshaw, 18 N.Y.3d at 264-265;
see People v Sanders, 25 N.Y.3d 337).
in light of the defendant's age, lack of experience with
the criminal justice system, and mental health history, the
colloquy in which the prosecutor engaged with the defendant
was insufficient to produce a voluntary, knowing, and
intelligent waiver (see People v Bradshaw, 18 N.Y.3d
at 265-266; People v DeMicheli, 129 A.D.3d 743;
cf. People v Sanders, 25 N.Y.3d at 342). Moreover,
although the record contains a written waiver, there is no
indication on the record that the County Court obtained an
acknowledgment from the defendant that she had, in fact,
signed the waiver or, if she had, that she was aware of its
contents or discussed it with defense counsel (see People
v Elmer, 19 N.Y.3d 501, 510; People v Callahan,
80 N.Y.2d 273, 283; People v Camarda, 138 A.D.3d
884, 885-886; People v Gordon, 127 A.D.3d 1230,
1231; People v Brown, 122 A.D.3d at 145).
the defendant is entitled to review of her contention that
her sentence was excessive. Contrary to the People's
contention, "the Appellate Division may exercise [the]
power to modify a sentence even where the defendant pleaded
guilty and received the sentence for which he or she
bargained" (People v Brown, 122 A.D.3d at 146;
see People ...