| People v Conley |
| 2017 NY Slip Op 03965 [150 AD3d 1023] |
| May 17, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Shannon M. Conley, Appellant. |
Salvatore C. Adamo, New York, NY, for appellant.
Robert Tendy, District Attorney, Carmel, NY (Melissa Lynch of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Putnam County (Reitz, J.),rendered June 4, 2015, convicting her of grand larceny in the third degree, upon her plea ofguilty, and sentencing her to an indeterminate term of imprisonment of 2
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentence imposed from an indeterminate term of imprisonment of2
The defendant failed to preserve for appellate review her contention that her plea was notknowing, voluntary, and intelligent, since she did not move to vacate her plea or otherwise raisethis issue before the County Court (see People v Lopez, 71 NY2d 662, 665-666 [1988];People v Smith, 146 AD3d 904,904-905 [2017]). In any event, the defendant's contention regarding the knowing, voluntary, andintelligent nature of her plea of guilty is without merit (see People v Smith, 146 AD3d at905).
The defendant's claim of ineffective assistance of counsel is based, at least in part, uponmatter appearing outside the record. In this case, it is not evident from the matter appearing onthe record that the defendant was deprived of the effective assistance of counsel (see People v Marryshow, 135 AD3d964, 965 [2016]; cf. People v Crump, 53 NY2d 824, 825 [1981]; People vBrown, 45 NY2d 852 [1978]). Accordingly, a CPL 440.10 proceeding is the appropriateforum for reviewing the defendant's claim in its entirety (see People v Sanders, 148 AD3d 846 [2017]; People v Freeman, 93 AD3d 805,806 [2012]; People v Maxwell, 89AD3d 1108, 1109 [2011]).
Contrary to the People's contention, under the circumstances of this case, the defendant'swaiver of her right to appeal was invalid. A waiver "is effective only so long as the recorddemonstrates that it was made knowingly, intelligently and voluntarily" (People v Lopez, 6 NY3d 248, 256[2006]; see People v Bradshaw, 18NY3d 257, 264 [2011]; People vBrown, 122 AD3d 133, 136 [2014]). "An appellate waiver meets this standard when adefendant has a full appreciation of the consequences of such waiver" (People vBradshaw, 18 NY3d at 264 [internal quotation marks omitted]; see People v Sanders, 25 NY3d337 [2015]; People v Brown, 122 AD3d at 136). "[F]actors individual to eachdefendant, such as the defendant's 'age, experience and background,' may be [*2]relevant in assessing the validity of a particular appeal waiver"(People v Brown, 122 AD3d at 138, quoting People v Bradshaw, 18 NY3d at264-265; see People v Sanders, 25NY3d 337 [2015]).
Here, in light of the defendant's age, lack of experience with the criminal justice system, andmental health history, the colloquy in which the prosecutor engaged with the defendant wasinsufficient to produce a voluntary, knowing, and intelligent waiver (see People vBradshaw, 18 NY3d at 265-266; People v DeMicheli, 129 AD3d 743 [2015]; cf. People vSanders, 25 NY3d at 342). Moreover, although the record contains a written waiver, there isno indication on the record that the County Court obtained an acknowledgment from thedefendant that she had, in fact, signed the waiver or, if she had, that she was aware of its contentsor discussed it with defense counsel (seePeople v Elmer, 19 NY3d 501, 510 [2012]; People v Callahan, 80 NY2d 273,283 [1992]; People v Camarda, 138AD3d 884, 885-886 [2016]; Peoplev Gordon, 127 AD3d 1230, 1231 [2015]; People v Brown, 122 AD3d at145).
Accordingly, the defendant is entitled to review of her contention that her sentence wasexcessive. Contrary to the People's contention, "the Appellate Division may exercise [the] powerto modify a sentence even where the defendant pleaded guilty and received the sentence forwhich he or she bargained" (People v Brown, 122 AD3d at 146; see People vThompson, 60 NY2d 513, 519-520 [1983]). Here, the sentence was excessive to the extentindicated. Mastro, J.P., Sgroi, LaSalle and Connolly, JJ., concur.