| People v Smith |
| 2021 NY Slip Op 02021 [193 AD3d 1114] |
| April 1, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Afreka S. Smith, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan 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 11, 2017, convicting defendant upon her plea of guilty of the crime of possessing anobscene sexual performance by a child.
Defendant waived indictment and agreed to be prosecuted pursuant to a superior courtinformation charging her with one count of possessing an obscene sexual performance by a child.The plea agreement, which required defendant to waive her right to appeal, contemplated thatdefendant would plead guilty to the charged crime with the understanding that she would besentenced to a 10-year term of probation. Defendant pleaded guilty in conformity with theagreement, and the agreed-upon probationary period was imposed. This appeal ensued.
The People, citing People vThomas (34 NY3d 545 [2019]), concede that defendant's waiver of the right to appeal isinvalid, and County Court's brief oral colloquy with defendant fails to demonstrate that defendant"understood the distinction that some appellate review survived" (id. at 561; see People v Deming, 190 AD3d1193, 1194 [2021]; People vBrunson, 185 AD3d 1300, 1300 n [2020], lv denied 36 NY3d 928 [2020]).Accordingly, defendant's challenge to the sentence imposed by County Court is not precluded (see People v Gonzalez, 186 AD3d1832, 1832 [2020]). That said, although defendant expressed remorse for her actions and hasno prior criminal history, given the disturbing nature of the underlying crime, we find noextraordinary circumstances or abuse of discretion warranting a reduction of the agreed-uponprobationary sentence in the interest of justice (see generally People v Hatch, 165 AD3d 1321, 1322 [2018], lvdenied 32 NY3d 1125 [2018]; People v Matthew NN., 156 AD3d 1119, 1120 [2017]; People v McCann, 100 AD3d1150, 1151 [2012]).
Egan Jr., J.P., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered thatthe judgment is affirmed.