| People v Boyzuck |
| 2010 NY Slip Op 03559 [72 AD3d 1530] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Traci L.Boyzuck, Appellant. |
—[*1] Susan H. Lindenmuth, District Attorney, Penn Yan (Jason Cook of counsel), forrespondent.
Appeal from a judgment of the Yates County Court (W. Patrick Falvey, J.), renderedFebruary 3, 2009. The judgment convicted defendant, upon her plea of guilty, of grand larceny inthe second degree and criminal possession of a forged instrument in the second degree (sixcounts).
It is hereby ordered that the judgment so appealed from is modified as a matter of discretionin the interest of justice by directing that the sentences imposed for criminal possession of aforged instrument in the second degree under counts 12, 14, 18, 19, 21 and 41 of the indictmentshall run concurrently with respect to each other and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon her plea of guilty,of one count of grand larceny in the second degree (Penal Law § 155.40 [1]) and sixcounts of criminal possession of a forged instrument in the second degree (§ 170.25). Wereject defendant's contention that the imposition of consecutive sentences for the counts ofcriminal possession of a forged instrument was illegal. Defendant committed six distinct acts thatformed the basis for those counts, and thus County Court was authorized to impose consecutivesentences (see People v Day, 73 NY2d 208, 211-212 [1989]).
Nevertheless, we agree with defendant that the imposition of consecutive sentences for thecounts of criminal possession of a forged instrument renders the sentence unduly harsh andsevere. Here, the valid waiver by defendant of the right to appeal does not preclude her fromchallenging the severity of the sentence inasmuch as the court's statements concerning themaximum sentence that could be imposed were inconsistent, confusing and misleading (see generally People v McNulty, 70AD3d 1127, 1128 [2010]; People vGordon, 53 AD3d 793 [2008]). During the plea proceeding, the court advised defendantthat she would be sentenced to a term of incarceration of 6 to 18 years. The court, however, alsotold defendant three times during the plea proceeding that she could receive "up to 15 years inprison" for the crimes to which she was pleading guilty. Indeed, the court advised her that, if shedid not cooperate with the Probation Department, the sentence promise would be withdrawn andshe could "be sentenced to as much as a maximum permitted by law: that is, 15 years in prison."That statement not only reinforced [*2]the misstatementconcerning the possible maximum term of incarceration, but it also suggested that an enhancedterm of 15 years would be imposed as a sanction for defendant's failure to cooperate with theProbation Department. We therefore modify the judgment as a matter of discretion in the interestof justice by directing that the sentences imposed for criminal possession of a forged instrumentin the second degree under counts 12, 14, 18, 19, 21 and 41 of the indictment shall runconcurrently with respect to each other (see CPL 470.15 [6] [b]).
Although the further contention of defendant that she was denied effective assistance ofcounsel survives her guilty plea and valid waiver of the right to appeal to the extent that shecontends that the plea was infected by the alleged ineffective assistance (see People v Kapp, 59 AD3d 974[2009], lv denied 12 NY3d 818 [2009]), we nevertheless conclude that her contentionlacks merit (see generally People v Ford, 86 NY2d 397, 404 [1995]). Finally, the courtproperly directed defendant to pay a 10% surcharge on the restitution ordered based upon theaffidavit of a Probation Department official indicating that "the actual cost of the collection andadministration of restitution . . . exceeds [the initial 5% surcharge]" (Penal Law§ 60.27 [8]; see People vBennett, 52 AD3d 1236, 1236-1237 [2008], lv denied 11 NY3d 785 [2008]).
All concur except Fahey and Pine, JJ., who dissent in part and vote to affirm in the followingmemorandum.
Fahey and Pine, JJ. (dissenting in part). We respectfully dissent in part and would affirminasmuch as, unlike the majority, we conclude that defendant's valid waiver of the right to appealprecludes this Court from exercising its power to review the severity of the sentence as a matterof discretion in the interest of justice (see generally People v Lopez, 6 NY3d 248, 255 [2006]). Whendefendant appeared before County Court to enter her plea, defense counsel summarized theterms of the plea agreement, which included a plea of guilty to one count of grand larceny in thesecond degree and six counts of criminal possession of a forged instrument in the second degree.Defense counsel stated that the recommended sentence would be a term of incarceration of 2 to 6years on the charge of grand larceny "with the other counts running consecutive but concurrentto the grand larceny charges." Defendant responded in the affirmative when the court askeddefendant if she knew "that [she] could receive up to 15 years in prison for the crimes chargedagainst [her] in th[e] indictment." At that point, the court reviewed the terms of the pleaagreement, specifically noting that the promised sentence would consist of, inter alia, "amaximum of three years and a minimum of one year on the six counts [of criminal possession ofa forged instrument] to be consecutive and . . . a maximum [of] six years and aminimum [of] two years on the grand larceny second count." Thereafter, the court askeddefendant whether she understood that she was required to waive her right to appeal as acondition of the plea, and she executed a written waiver of the right to appeal setting forth thather total term of incarceration would be 6 to 18 years. Defendant then entered her plea, and shewas sentenced in accordance with the plea agreement.
The record of the plea colloquy thus establishes that, despite the court's erroneous statementthat defendant could receive up to 15 years for the crimes to which she was pleading guilty, shethereafter was twice informed, before she entered her plea, of the specific sentence that shewould receive pursuant to the plea agreement.
It is well established that a valid waiver of the right to appeal encompasses a challenge to theseverity of the sentence where the defendant is informed of the specific sentence promisedbefore waiving the right to appeal (see id. at 255; People v Mingo, 38 AD3d 1270 [2007]; People v Semple, 23 AD3d 1058[2005], lv denied 6 NY3d 852 [2006]; see also People v Gordon, 43 AD3d 1330 [2007], lv denied9 NY3d 1006 [2007]). Because defendant was informed of the specific sentence promised beforeshe waived the right to appeal, we conclude that her valid waiver of the right to appealencompasses her challenge to the severity of the sentence (see Lopez, 6 NY3d at 255).Indeed, under these circumstances, "[a] defendant may not subsequently eviscerate [a plea]bargain by [*3]asking an appellate court to reduce the sentence inthe interest of justice" (id. at 255-256). "The important goals of fairness and finality incriminal matters are accomplished only insofar as the parties are confident that the carefullyorchestrated bargain of an agreed-upon sentence will not be disturbed as a discretionary matter"(id. at 256 [internal quotation marks omitted]). Present—Centra, J.P., Fahey,Carni, Green and Pine, JJ.