| People v Murphy |
| 2020 NY Slip Op 06640 [188 AD3d 1668] |
| November 13, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Sarah Murphy, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Bradley W. Oastler of counsel), forrespondent.
Jessica Perry, New York City, for New York Civil Liberties Union Foundation, amicuscuriae.
Appeal from a judgment of the Onondaga County Court (James H. Cecile, A.J.), renderedJune 27, 2017. The judgment convicted defendant upon a plea of guilty of criminal possession ofa forged instrument in the first 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 to an indeterminate termof incarceration of 1 to 3 years and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a plea of guilty ofcriminal possession of a forged instrument in the first degree (Penal Law § 170.30).Defendant was initially referred to a drug treatment court program but, following an incident inwhich she tested positive for drugs and was found to have drugs hidden on her person, she wassentenced to an indeterminate term of 2 to 6 years in prison.
Initially, we agree with defendant that her purported waiver of the right to appeal is notenforceable inasmuch as the totality of the circumstances fails to reveal that she "understood thenature of the appellate rights being waived" (People v Thomas, 34 NY3d 545, 559 [2019], cert denied589 US &mdash, 140 S Ct 2634 [2020]). County Court's oral colloquy "mischaracterized thewaiver of the right to appeal, portraying it in effect as an 'absolute bar' to the taking of an appeal"(People v Cole, 181 AD3d1329, 1330 [4th Dept 2020]; see Thomas, 34 NY3d at 565). In explaining thewaiver, the court suggested that defendant was entirely ceding any ability to challenge her guiltyplea on appeal, but such an "improper description of the scope of the appellate rights relinquishedby the waiver is refuted by . . . precedent, whereby a defendant retains the right toappellate review of very selective fundamental issues," including the voluntariness of the pleaand appeal waiver, the legality of the sentence, and the defendant's competency to stand trial(Thomas, 34 NY3d at 566; see People v Callahan, 80 NY2d 273, 280 [1992]).Where, as here, the court " 'mischaracterize[s] the nature of the right a defendant wasbeing asked to cede,' " this Court " 'cannot be certain that the defendantcomprehended the nature of the waiver of appellate rights' " (Thomas, 34 NY3dat 565-566). The better practice is for the court to use the Model Colloquy, which "neatlysynthesizes . . . the governing principles" (People v Dozier, 179 AD3d 1447, 1447 [4th Dept 2020], lvdenied 35 NY3d 941 [2020] [internal quotation marks omitted]).
Defendant failed to preserve for our review her contention that the court violated herconstitutional right to equal protection when it sentenced her to a term of incarceration becauseshe tested positive for drugs while pregnant (see CPL 470.05 [2]; People v Cesar, 131 AD3d 223,226-227 [2d Dept 2015]; People vLashley, 58 AD3d 753, 754 [2d Dept 2009], lv dismissed 12 NY3d 759 [2009])and we decline to exercise our power to review that contention as a matter of discretion in theinterest of justice.
We reject defendant's contention that the court failed to exercise its discretion in imposing asentence of incarceration (see generally People v Farrar, 52 NY2d 302, 305-306 [1981]).We agree with defendant, however, that the sentence is harsh and severe. In light of defendant'sminimal criminal history, the nonviolent nature of the instant offense and the fact that this wasdefendant's first relapse while participating in the drug treatment court program, we modify thejudgment as a matter of discretion in the interest of justice by reducing the sentence to anindeterminate term of incarceration of 1 to 3 years (see CPL 470.15 [6] [b]).Present—Carni, J.P., Lindley, Winslow, Bannister and DeJoseph,JJ.