| People v Mobley |
| 2014 NY Slip Op 04337 [118 AD3d 1336] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vShadaje Mobley, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered October 26, 2011. The judgment convicted defendant, upon her plea of guilty,of burglary in the second degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea ofguilty of burglary in the second degree (Penal Law § 140.25 [2]). We agreewith defendant that her waiver of the right to appeal is invalid because "the minimalinquiry made by County Court was insufficient to establish that the court engage[d] thedefendant in an adequate colloquy to ensure that the waiver of the right to appeal was aknowing and voluntary choice" (People v Box, 96 AD3d 1570, 1571 [2012], lvdenied 19 NY3d 1024 [2012] [internal quotation marks omitted]; see People v Hamilton, 49AD3d 1163, 1164 [2008]). Indeed, on this record there is no basis upon which toconclude that the court ensured "that the defendant understood that the right to appeal isseparate and distinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d248, 256 [2006]).
Defendant did not move to withdraw the plea or vacate the judgment of conviction,and therefore failed to preserve for our review her contention that the plea was notknowingly, voluntarily, and intelligently entered (see People v Robinson, 112 AD3d 1349, 1349 [2013]).Contrary to her contention, "this case does not fall within the rare exception to thepreservation requirement because nothing in the plea allocution calls into question thevoluntariness of the plea or casts 'significant doubt' upon [her] guilt" (id., quotingPeople v Lopez, 71 NY2d 662, 666 [1988]).
Finally, defendant contends that the court abused its discretion in denying her requestfor youthful offender status and that the sentence, a determinate term of imprisonment ofseven years plus five years of postrelease supervision, is unduly harsh and severe. Wereject those contentions.
In her initial statement to the police, defendant stated that she, her fiancé andher fiancé's [*2]brother burglarized a home. Sheentered the home through a window late at night, and proceeded to open the door for thecodefendants. Defendant acted as a lookout while the codefendants took numerous itemsof property, including a credit card with a woman's name on it. The next day defendantused that credit card multiple times, amassing over $6,000 in charges. Defendant agreedto plead guilty to the burglary charge, promising that she would cooperate in theprosecution of the codefendants. In exchange for her truthful testimony, she wouldreceive a youthful offender adjudication and a sentence of probation. Defendant wasgranted pretrial release. Due to problems the prosecutor was encountering, defendant wasreturned to court for an amplified allocution, during which defendant was sworn.At that time defendant again implicated the codefendants, while specifically denyingthat her brother was involved. The week before the codefendants' trial, defendant wasreturned to court, whereupon she was again informed that her plea agreement wasconditioned on her truthful testimony at the codefendants' trial.
Nevertheless, at the codefendants' trial, defendant testified that she was unable torecall any of the details of the burglary or even her own involvement in that burglary.Specifically, she did not remember ever committing a burglary with the codefendants.With respect to her use of the credit card, defendant testified that her brother gave her thecard and that the codefendants had nothing to do with it. Defendant explained that herstatement to the police was her attempt to cover for her brother.
Based on " 'the gravity of the crime[,] . . . [the] manner in whichit was committed . . . , defendant's attitude toward society and [her lack of]respect for the law' " (People v Amir W., 107 AD3d 1639, 1640 [2013]), weconclude that the court did not abuse its discretion in denying defendant's request foryouthful offender status (seePeople v Lowe, 113 AD3d 1133, 1134 [2014]; People v Jones, 107 AD3d1611, 1611 [2013], lv denied 21 NY3d 1043 [2013], reconsiderationdenied 22 NY3d 956 [2013]). We further conclude that the sentence is not undulyharsh or severe. Defendant perjured herself, made a mockery of the criminal justicesystem and chose to violate her extremely advantageous plea agreement in an attempt toprotect her fiancé and his brother. While we recognize that defendant was only 18years old at the time of the offense and had no prior convictions, she was an intelligentyoung woman who made a deliberate choice, yet again, to violate the law for her ownpersonal interests.
All concur except Centra and Lindley, JJ., who dissent and vote to modify in thefollowing memorandum: We respectfully dissent in part because we believe that thesentence is unduly harsh and severe, and we therefore would modify the judgment byreducing the sentence of imprisonment as a matter of discretion in the interest of justice.Defendant gave a statement to the police admitting her involvement in the burglary andimplicated the two codefendants. Defendant was promised a sentence of youthfuloffender treatment and probation as part of the plea bargain, which required her tocooperate in the prosecution of the case against the codefendants. At the codefendants'trial, however, defendant testified that she did not remember committing a burglary withthe codefendants. We agree with County Court that defendant violated the pleaagreement and further conclude that the court did not abuse its discretion in denyingdefendant's request for youthful offender status (see People v Lowe, 113 AD3d 1133, 1134 [2014]).Nevertheless, in our view the sentence, a determinate term of imprisonment of sevenyears plus five years of postrelease supervision, is unduly harsh and severe. Defendantwas 18 years old at the time of the offense and had no prior convictions. Defendantreported to the probation officer that she graduated as valedictorian of a prepatory highschool and attended college for two semesters. The codefendants were brothers, and oneof them was the father of one of defendant's two young children. Defendant was grantedpretrial release after pleading guilty, and she notes on appeal that she was undertremendous pressure at the codefendants' trial. Under the circumstances, we wouldreduce the sentence of imprisonment imposed to a [*3]determinate term of four years (see generally CPL470.15 [6] [b]). Present—Scudder, P.J., Centra, Carni, Lindley and DeJoseph,JJ.