| People v Justiniano |
| 2015 NY Slip Op 08875 [134 AD3d 1172] |
| December 3, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDaniel Justiniano, Appellant. |
Proyect & Hart, Parksville (Joel M. Proyect of counsel), for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Devine, J. Appeals (1) from a judgment of the County Court of Sullivan County(McGuire, J.), rendered December 17, 2013, convicting defendant upon his plea of guiltyof the crime of burglary in the second degree (four counts), and (2) by permission, froman order of said court, entered August 29, 2014, which denied defendant's motionpursuant to CPL 440.10 to vacate the judgment of conviction.
In satisfaction of a 10-count indictment stemming from a spree of home break-ins,defendant pleaded guilty to four counts of burglary in the second degree and purportedlywaived his right to appeal from the conviction and sentence. County Court made nosentencing commitment, and defendant acknowledged during the plea colloquy that hecould potentially receive consecutively-running sentences of 15 years in prison, pluspostrelease supervision, on each count.[FN*] County Court thereafter rejecteddefendant's request to be adjudicated a youthful offender and imposed a prison sentenceof four years on each count, to be served consecutively, followed by five years ofpostrelease supervision. The court also ordered defendant to pay a fine of $20,000 andrestitution of $15,000. Defendant subsequently retained [*2]new counsel and moved to vacate the judgment on theground that he had been deprived of the effective assistance of counsel (see CPL440.10 [1] [h]). County Court denied defendant's motion without a hearing. Defendantnow appeals from both the judgment of conviction and, by permission, from the orderdenying his postconviction motion.
Defendant was free to waive his right to appeal as an adjunct to the plea agreement,so long as he made a voluntary, knowing and intelligent decision to do so (see People v Sanders, 25 NY3d337, 340 [2015]). It was accordingly incumbent upon County Court to verify, amongother things, that defendant understood he was "intentionally relinquish[ing] orabandon[ing] a known right that would otherwise survive a guilty plea" as a componentof the plea agreement (People v Hansen, 95 NY2d 227, 230 n 1 [2000]; seePeople v Sanders, 25 NY3d at 340; People v Johnson, 14 NY3d 483, 486 [2010]). Defendantexpressed his willingness to waive his right to appeal during the plea colloquy, but therecord is devoid of any indication that an appeal waiver was actually a component of theplea agreement. An appeal waiver was not mentioned when the terms of the pleaagreement were recited and, indeed, the People stated that they did not know if defendantwas executing an appeal waiver given the absence of any sentencing commitment.Defense counsel then gratuitously offered to have defendant waive his right to appeal inthe spirit of "mak[ing] it as easy on everyone as possible." As a result of these statements,County Court was obliged to determine whether an appeal waiver was required as a"detail[ ] of the plea bargain" and, if not, whether defendant understood that he did nothave to execute one (People v Sanders, 25 NY3d at 340). County Court didneither and, given the absence of proof that defendant waived his right to appeal in returnfor any consideration, we find that waiver to be invalid (see e.g. People v Crump, 107AD3d 1046, 1047 [2013], lv denied 21 NY3d 1014 [2013]; People v Meiner, 20 AD3d778, 779 n [2005]).
We accordingly turn to the sentencing issues raised by defendant, which are properlybefore us given the absence of a valid appeal waiver (compare People v Baker, 6 AD3d 751, 751 [2004]). Whilewe are unpersuaded that County Court abused its discretion in denying defendant'srequest for youthful offender status (see People v Green, 128 AD3d 1282, 1283 [2015]; People v Butler, 111 AD3d1024, 1024-1025 [2013], lv denied 23 NY3d 961 [2014]), we do agree withdefendant's further contention that the sentence imposed was harsh and excessive.Defendant was only 18 years of age when he committed the instant offenses, which wereall nonviolent, and he has no prior involvement with the criminal justice system as anadult. He reported that he was abusing alcohol and marihuana at the time he committedthe burglaries, and he underwent treatment for substance abuse and depression during thependency of this matter. He also belatedly recognized how violated a victim of a homeburglary may feel, and he apologized to the victims for his behavior. Indeed, even thePeople, who were extremely concerned by the impact of the burglaries on the victims andthe community at large, recommended a lesser aggregate prison sentence of 12 years.Taking all of these factors into account, we choose to exercise our interest of justicejurisdiction to modify defendant's sentences and order that they run concurrently(see CPL 470.15 [2] [c]; [6] [b]; People v Bunch, 112 AD3d 958, 958-959 [2013], lvdenied 23 NY3d 1018 [2014]; People v Kearns, 66 AD3d 1084, 1085 [2009]; People v Lakatosz, 59 AD3d813, 817 [2009], lv denied 12 NY3d 917 [2009]).
Defendant's remaining contentions with regard to his CPL article 440 motion, to theextent that they are not academic in light of the foregoing, have been examined andfound to lack merit.
Lahtinen, J.P., McCarthy and Lynch, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by directing that defendant'ssentences for the four counts of burglary in the second degree shall run concurrentlyrather than consecutively, and, as so modified, affirmed. Ordered that the order isaffirmed.
Footnote *:County Court correctlyadvised defendant of the potential maximum sentence for each count of burglary in thesecond degree, but mistakenly arrived at an inaccurately high potential aggregate prisonterm of 75 years.