| People v Tesar |
| 2009 NY Slip Op 06087 [65 AD3d 716] |
| August 6, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Barbara A.Tesar, Appellant. |
—[*1] Julie A. Garcia, District Attorney, Elizabethtown, for respondent.
Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered March25, 2008, convicting defendant upon her plea of guilty of the crimes of grand larceny in thesecond degree and tampering with public records in the first degree.
Between 2002 and 2007, defendant used her position as the clerk/treasurer of the Village ofPort Henry in Essex County to steal over $150,000. When criminal charges were going to befiled against her, she waived indictment and agreed to be prosecuted by a superior courtinformation charging her with grand larceny in the second degree and tampering with publicrecords in the first degree. She subsequently pleaded guilty to these crimes and waived her rightto appeal. There was no specific sentence agreed to under the terms of the plea agreementalthough County Court advised defendant that she could receive 5 to 15 years in prison on thegrand larceny charge. Thereafter, defendant was sentenced to consecutive terms of imprisonmentof 5 to 15 years for grand larceny in the second degree and 2
Initially, defendant contends that she is not precluded by her waiver of the right to appealfrom challenging the severity of the sentence because County Court neglected to fully inform herof the maximum sentences that she could receive for the crimes at issue at the time she pleadedguilty and executed the waiver. We are constrained to agree. Although County Court retaineddiscretion and did not make any promise with regard to a specific sentence to be imposed underthe plea agreement, the court failed to advise defendant of the possible sentence that could beimposed on the tampering charge or that the sentence for this crime could run [*2]consecutive to the sentence to be imposed on the grand larcenycharge. In light of these omissions, we find that defendant's waiver does not encompass herchallenge to the severity of the sentence (see People v Shea, 254 AD2d 512, 513 [1998];cf. People v Lococo, 92 NY2d 825 [1998]; People v Grant, 294 AD2d 671, 672[2002], lv denied 98 NY2d 730 [2002]).
Circumstances that merit consideration with regard to defendant's claim that her sentence isharsh and excessive are that defendant has no prior criminal record and she paid full restitutionby the time of sentencing. In view of these factors and the failure to formally advise defendant ofall relevant considerations at the time of the plea, we exercise our interest of justice jurisdictionand modify the sentence by directing that the terms of imprisonment for each crime runconcurrently (see People v Murdock, 219 AD2d 764 [1995]; People v Sichenzia,155 AD2d 702 [1989], lv denied 75 NY2d 775 [1989]).
Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by directing that the sentencesimposed upon defendant run concurrently to one another, and, as so modified, affirmed.