| People v Camarda |
| 2016 NY Slip Op 02848 [138 AD3d 884] |
| April 13, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Sarah Camarda, Appellant. |
John P. Savoca, Yorktown Heights, NY, for appellant.
Robert Tendy, District Attorney, Carmel, NY (David M. Bishop of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Putnam County(Reitz, J.), rendered April 24, 2014, convicting her of criminal possession of a controlledsubstance in the third degree, upon her plea of guilty, and sentencing her to a determinateterm of imprisonment of seven years, followed by a period of postrelease supervision,and a fine in the sum of $5,000.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the determinate term of imprisonment imposed from seven years to3
The defendant contends that her plea of guilty was not knowing, voluntary, orintelligent because the County Court failed to inquire whether she had consulted with herattorney about the constitutional rights under Boykin v Alabama (395 US 238[1969]) that she was forfeiting by pleading guilty. While this issue would survive a validwaiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Murphy, 114 AD3d704, 705 [2014]; People vJoseph, 103 AD3d 665 [2013]; People v Ballinger, 12 AD3d 686, 687 [2004]), it isnonetheless unpreserved for appellate review, since the defendant did not move to vacateher plea prior to the imposition of sentence or otherwise raise the issue in the CountyCourt (see People v Sirico,135 AD3d 19, 22 [2015]; People v Isaiah S., 130 AD3d 1081 [2015]; People v Bennett, 122 AD3d871, 872 [2014]). In any event, since the County Court expressly advised thedefendant of the Boykin rights and other constitutional rights that she waswaiving by pleading guilty, and the record affirmatively demonstrates the defendant'sunderstanding and waiver of these constitutional rights, we find that the plea of guiltywas knowingly, voluntarily, and intelligently entered (see People v Harris, 61NY2d 9, 19-20 [1983]; People v Sirico, 135 AD3d at 22; People v IsaiahS., 130 AD3d at 1082; People v Jackson, 114 AD3d 807, 807-808 [2014]).
While a defendant who has validly waived the right to appeal cannot invoke thisCourt's interest of justice jurisdiction to obtain a reduced sentence (see People v Lopez, 6 NY3d248, 255 [2006]), here, the Court is not precluded from exercising its interest ofjustice jurisdiction, since the defendant's purported waiver of her right to appeal wasinvalid. The record does not demonstrate that the defendant understood the distinctionbetween the right to appeal and other trial rights forfeited incident to her plea of guilty(see People v Moyett, 7NY3d 892, 893 [2006]; People v Lopez, 6 NY3d at 257; People v Gordon, 127 AD3d1230, 1231 [2015]; Peoplev Cantarero, 123 AD3d 841, 841 [2014]; [*2]People v Ayala, 112 AD3d646 [2013]). Furthermore, although the defendant executed a written appeal waiverform, there is no indication on the record that the County Court obtained anacknowledgment from the defendant that she had, in fact, signed the waiver or, if shehad, she was aware of its contents or discussed it with defense counsel (see People v Elmer, 19 NY3d501, 510 [2012]; People v Callahan, 80 NY2d 273, 283 [1992]; People vGordon, 127 AD3d at 1231; People v Brown, 122 AD3d 133, 145 [2014]). Accordingly,despite the defendant's execution of a written waiver of her right to appeal, she did notknowingly, voluntarily, or intelligently waive her right to appeal (see People vElmer, 19 NY3d at 510; People v Bradshaw, 18 NY3d 257, 264 [2011]; Peoplev Callahan, 80 NY2d at 283).
The sentence imposed was excessive to the extent indicated herein (see People v Gordon, 132AD3d 904 [2015]; People v Velasquez, 181 AD2d 751 [1992]; People vIrby, 95 AD2d 839 [1983]; People v Suitte, 90 AD2d 80 [1982]). Hall, J.P.,Roman, LaSalle and Barros, JJ., concur.