| People v Suprunchik |
| 2022 NY Slip Op 04877 [208 AD3d 1058] |
| August 4, 2022 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Aleksandra Suprunchik, Appellant. |
Leland D. McCormac, III, Public Defender, Utica (Patrick J. Marthage of counsel), fordefendant-appellant.
Scott D. McNamara, District Attorney, Utica (Evan A. Esswein of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered May20, 2016. The judgment convicted defendant, upon a plea of guilty, of robbery 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 of imprisonment imposed to adeterminate term of eight years, and as modified the judgment is affirmed and the matter isremitted to Oneida County Court for proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting her, upon her plea of guilty, ofrobbery in the first degree (Penal Law § 160.15 [3]). We agree with defendant thatthe record does not establish that she validly waived her right to appeal. County Court's "oralwaiver colloquy and the written waiver signed by defendant together 'mischaracterized the natureof the right that defendant was being asked to cede, portraying the waiver as an absolute bar todefendant taking an appeal and the attendant rights to counsel and poor person relief,. . . and there is no clarifying language in either the oral or written waiver indicatingthat appellate review remained available for certain issues' " (People v Johnson, 192 AD3d1494, 1495 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see People v Shanks, 37 NY3d244, 253 [2021]; People vThomas, 34 NY3d 545, 564-566 [2019], cert denied 589 US —, 140 S Ct2634 [2020]).
Defendant failed to preserve for our review her conclusory contention that the sentenceconstitutes cruel and unusual punishment (see People v Pena, 28 NY3d 727, 730 [2017]; People v Archibald, 148 AD3d1794, 1795 [4th Dept 2017], lv denied 29 NY3d 1075 [2017]), and we decline toexercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [3] [c]). However, we agree with defendant that the sentence is undulyharsh and severe. "The determination of an appropriate sentence requires the exercise ofdiscretion after due consideration given to, among other things, the crime charged, the particularcircumstances of the individual before the court and the purpose of a penal sanction, i.e., societalprotection, rehabilitation and deterrence" (People v Farrar, 52 NY2d 302, 305 [1981]).Under the particular circumstances of this case, we conclude that a determinate term ofimprisonment of eight years, to be followed by the five-year period of postrelease supervisionpreviously imposed by the court, is an appropriate sanction for the crime committed, and wetherefore modify the judgment accordingly. Present—Whalen, P.J., Peradotto, NeMoyer,Curran and Bannister, JJ.