| People v Robinson |
| 2021 NY Slip Op 03871 [195 AD3d 1235] |
| June 17, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Amanda Robinson, Appellant. |
Adam G. Parisi, Schenectady, for appellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Egan Jr., J. Appeals (1) from a judgment of the Supreme Court (Lynch, J.), rendered August22, 2018 in Albany County, convicting defendant upon her plea of guilty of the crime of criminalpossession of a controlled substance in the third degree, and (2) by permission, from an order ofsaid court, entered May 15, 2019 in Albany County, which denied defendant's motion pursuant toCPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant was charged in an indictment with one count of criminal possession of acontrolled substance in the second degree and one count of criminal possession of a controlledsubstance in the third degree. Pursuant to a negotiated agreement, defendant pleaded guilty to onecount of criminal possession of a controlled substance in the third degree, admitting that shepossessed cocaine, and purportedly waived her right to appeal. Supreme Court thereaftersentenced defendant, in accordance with the terms of the plea agreement, to a prison term of4
We affirm. Initially, we agree with defendant that she did not knowingly, intelligently andvoluntarily waive the right to appeal. The written appeal waiver that defendant signed containedoverbroad language that indicated that she was giving up the right to appeal so long as SupremeCourt sentenced her in accordance with the plea agreement. A review of the plea allocutionreveals that Supreme Court did not overcome this defect by ensuring that defendant understoodthat some appellate rights survive the appeal waiver (see People v Thomas, 34 NY3d 545, 566 [2019]; People v Aponte, 190 AD3d 1031,1032 [2021]; People v Brito, 184AD3d 900, 900-901 [2020]). Defendant's contention that the agreed-upon sentence washarsh and excessive has been rendered moot as she has already served her sentence and beenreleased (see People v McLean, 185AD3d 1089, 1089 [2020]; People vSanford, 171 AD3d 1405, 1407 [2019]). In any event, we discern no abuse of discretionor extraordinary circumstances that would warrant modification of the sentence in the interest ofjustice (see People v Douglas, 162AD3d 1212, 1217 [2018], lv denied 31 NY3d 1147 [2018]).
Finally, we find no error or abuse of discretion in Supreme Court's denial of defendant's CPLarticle 440 motion to vacate the judgment of conviction, without a hearing. Defendant's claim,made in a letter attached to her motion concerning what counsel advised her about her sentencingexposure if she took her case to trial, failed to establish that the nonrecord facts sought to beestablished would entitle her to relief (see People v Betances, 179 AD3d 1225, 1226-1227 [2020], lvdenied 35 NY3d 968 [2020]; People v Griffin, 89 AD3d [*2]1235, 1237 [2011]). Even accepting defendant's self-servingstatement that her counsel misstated her sentencing exposure during an off-the-record discussion,Supreme Court accurately explained her actual exposure during the plea allocution, anddefendant indicated that she understood the Court's recitation (see People v Garcia, 92NY2d 869, 870-871 [1998]; People vMack, 140 AD3d 791, 792 [2016], lv denied 28 NY3d 933 [2016]).
Garry, P.J., Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentand order are affirmed.