| People v Barthelmas |
| 2021 NY Slip Op 00338 [190 AD3d 1160] |
| January 21, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Elizabeth M. Barthelmas, Appellant. |
Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), renderedSeptember 5, 2018, convicting defendant upon her plea of guilty of the crime of rape in the firstdegree.
Defendant, a former elementary school teacher, waived indictment and agreed to beprosecuted by a superior court information charging her with one count of rape in the first degree.The charges stemmed from defendant engaging in sexual intercourse with her 10-year-oldstudent in 2007. In full satisfaction of the superior court information, as well as other pendingand potential charges, defendant agreed to plead guilty to one count of rape in the first degree.The plea agreement, which required defendant to waive her right to appeal, contemplated thatdefendant would be sentenced to a determinate term of imprisonment ranging from 10 to 15years followed by a period of postrelease supervision ranging from 5 to 20 years—with theprecise terms left to the discretion of County Court at the time of sentencing. Followingdefendant's guilty plea, County Court sentenced defendant to a prison term of 15 years followedby 20 years of postrelease supervision. This appeal ensued.
We affirm. The People concede that defendant's waiver of the right to appeal is invalid underPeople v Thomas (34 NY3d545 [2019]), and County Court's terse oral colloquy with defendant falls short ofdemonstrating that defendant "understood the distinction that some appellate rights survived"(id. at 561; see People vBrunson, 185 AD3d 1300, 1300 n [2020], lv denied 36 NY3d 928 [2020]; People v Martin, 179 AD3d 1385,1386 [2020]). As such, defendant's challenge to the sentence imposed by County Court is notprecluded (see People v Gonzalez,186 AD3d 1832, 1832 [2020]). In this regard, although defendant expressed remorse for heractions and has no prior criminal history, the fact remains that she abused a position of trust byengaging in sexual intercourse with a young child—a child who defendant herselfacknowledged "seemed to be down on himself as if he could do nothing right." As the recordreflects that defendant first befriended and then betrayed the victim, we discern no extraordinarycircumstances or abuse of discretion "warranting a reduction of the sentence, which was withinthe agreed-upon range, in the interest of justice" (People v Tomko, 185 AD3d 1356, 1357 [2020], lv denied35 NY3d 1116 [2020]; see generallyPeople v McCann, 100 AD3d 1150, 1151 [2012]).
Lynch, J.P., Clark, Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.