| People v Jeffords |
| 2020 NY Slip Op 04037 [185 AD3d 1417] |
| July 17, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Cody Jeffords, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (David A. Heraty of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered February1, 2017. The judgment convicted defendant upon his plea of guilty of manslaughter in the firstdegree.
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 to a determinate term ofimprisonment of 19 years and five years of postrelease supervision, and as modified thejudgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofmanslaughter in the first degree (Penal Law § 125.20 [1]), defendant contends thathe did not validly waive his right to appeal. We agree. The better practice is for the court to usethe Model Colloquy, which "neatly synthesizes . . . the governing principles" (People v Thomas, 34 NY3d 545,567 [2019], citing NY Model Colloquies, Waiver of Right to Appeal,http://www.nycourts.gov/judges/cji/8-Colloquies/Waiver%20of%20Right%20to%20Appeal.pdf).Here, in describing the nature of defendant's right to appeal and the breadth of the waiver of thatright, County Court incorrectly stated that defendant could not "appeal this case to a higher court;it would end here at the time of sentence" and that defendant was "waiving any appellate issues. . . [i.e.,] any and all legal issues." Although no "particular litany" is required for awaiver of the right to appeal to be valid (People v Lopez, 6 NY3d 248, 256 [2006]; see People vJohnson [appeal No. 1], 169 AD3d 1366, 1366 [4th Dept 2019], lv denied 33 NY3d949 [2019]), defendant's waiver of the right to appeal was invalid because the courtmischaracterized it as an "absolute bar" to the taking of an appeal (Thomas, 34 NY3d at565).
Additionally, we are unable to determine whether the written appeal waiver purportedlysigned by defendant at the plea colloquy corrected any defects in the court's oral colloquybecause it was not included in the record on appeal. In any event, "[t]he court did not inquire ofdefendant whether he understood the written waiver or whether he had even read the waiverbefore signing it" (People vBradshaw, 18 NY3d 257, 262 [2011]; see People v Mobayed, 158 AD3d 1221, 1222 [4th Dept 2018],lv denied 31 NY3d 1015 [2018]).
Defendant contends that the court did not make an appropriate inquiry into his request for asubstitution of counsel. Assuming, arguendo, that this contention is not foreclosed by his guiltyplea because it "implicates the voluntariness of the plea" (People v Morris, 94 AD3d 1450, 1451 [4th Dept 2012], lvdenied 19 NY3d 976 [2012]), we nevertheless conclude that "defendant abandoned hisrequest for new counsel when he 'decid[ed] . . . to plead guilty while still beingrepresented by the same attorney' " (People v Guantero, 100 AD3d 1386, 1387 [4th Dept 2012], lvdenied 21 NY3d 1004 [2013]; seePeople v Coleman, 178 AD3d 1377, 1378 [4th Dept 2019]; People v Barr, 169 AD3d 1427,1427-1428 [4th Dept 2019], lv denied 33 NY3d 1028 [2019]).
We agree with defendant, however, that the 24-year determinate sentence is unduly harsh andsevere considering, inter alia, defendant's background, genuine show of remorse, and lack ofprior criminal history. Thus, we modify the judgment as a matter of discretion in the interest ofjustice by reducing the sentence to a determinate term of imprisonment of 19 years and five yearsof postrelease supervision, which falls within the sentence range negotiated by the parties(see CPL 470.15 [6] [b]). Present—Whalen, P.J., Centra, NeMoyer, Curran andWinslow, JJ.