| People v Feher |
| 2018 NY Slip Op 06653 [165 AD3d 1610] |
| October 5, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Feher, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Brittney Clark of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Nicole K. Intschert of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (James H. Cecile, A.J.), renderedNovember 10, 2015. The judgment convicted defendant, upon his plea of guilty, of burglary inthe third degree and grand larceny in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by reducing the sentence imposed on count one of theindictment to an indeterminate term of imprisonment of 2 to 4 years, and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of burglary in the third degree (Penal Law § 140.20) and grand larceny in the fourthdegree (§ 155.30 [1]). We conclude that defendant validly waived his right toappeal (see People v Lopez, 6 NY3d248, 256-257 [2006]; People vJames, 155 AD3d 1094, 1095 [3d Dept 2017], lv denied 30 NY3d 1116 [2018];People v Gibson, 147 AD3d1507, 1507-1508 [4th Dept 2017], lv denied 29 NY3d 1032 [2017]). Defendant'svalid waiver of the right to appeal forecloses his contention that County Court abused itsdiscretion in terminating him from the drug court program (see People v McKay, 106 AD3d 837, 838 [2d Dept 2013], lvdenied 21 NY3d 1006 [2013]; People v Schwandner, 67 AD3d 1481, 1481 [4th Dept 2009], lvdenied 14 NY3d 805 [2010]; Peoplev Ephram, 47 AD3d 497, 497 [1st Dept 2008], lv denied 10 NY3d 810 [2008];cf. People v Peck, 90 AD3d1500, 1501 [4th Dept 2011]; seegenerally People v Dillon, 61 AD3d 1221, 1221-1222 [3d Dept 2009], lv denied14 NY3d 840 [2010]).
Defendant's waiver of the right to appeal does not, however, foreclose his further contentionthat the sentence imposed on count one of the indictment violated the terms of the plea bargain(see People v Copes, 145 AD3d1639, 1639 [4th Dept 2016], lv denied 28 NY3d 1182 [2017]; People v Harris, 142 AD3d 557,557 [2d Dept 2016]; People v Jones,77 AD3d 1178, 1178 [3d Dept 2010], lv denied 16 NY3d 832 [2011]), and thePeople correctly concede that the sentence on that count did, in fact, exceed the sentencepromised in the plea bargain (see generally People v Selikoff, 35 NY2d 227, 241 [1974],cert denied 419 US 1122 [1975]). Although defendant failed to preserve that contentionfor appellate review (see People vWilliams, 27 NY3d 212, 219-225 [2016]), we nevertheless exercise our power to reviewit as a matter of discretion in the interest of justice (see People v Smith, 160 AD3d 1475, 1475 [4th Dept 2018]). Inlight of the parties' joint request for specific performance of the plea bargain rather than vacaturof the guilty plea, we modify the judgment by reducing the sentence imposed on count one to anindeterminate term of imprisonment of 2 to 4 years as contemplated by the plea bargain (seePeople v Marrero, 250 AD2d 624, 625 [2d Dept 1998]; People v Annunziata, 105AD2d 709, 709 [2d Dept 1984]).
Defendant's challenge to the severity of his sentence as modified is foreclosed by his validwaiver of the right to appeal (see Lopez, 6 NY3d at 255-256). Defendant's reliance on People v Boyzuck (72 AD3d 1530[4th Dept 2010]) is misplaced. In Boyzuck, we held that the defendant's valid appealwaiver did "not preclude her from challenging the severity of the sentence inasmuch as thecourt's statements concerning the maximum sentence . . . were inconsistent,confusing and misleading" (id. at 1530). Here, in contrast, the court's evolving statementsregarding defendant's maximum exposure on count one simply tracked the ongoing pleanegotiations and were not misleading, inconsistent, or confusing.
Finally, we note that the certificate of conviction contains incorrect dates for the underlyingoffenses, and it must therefore be amended to reflect the correct dates recited in the uniformsentence and commitment sheet (seePeople v Curtis, 162 AD3d 1758, 1758 [4th Dept 2018]). Present—Whalen, P.J.,Centra, Lindley, NeMoyer and Troutman, JJ.