PEOPLE v. JOHNSON (2024)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20 [1]) and robbery in the first degree (§ 160.15 [4]), defendant contends that his sentence is unduly harsh and severe. As the People correctly concede, defendant did not validly waive his right to appeal because “[t]he written waiver of the right to appeal signed by defendant [at the time of the plea] and the verbal waiver colloquy conducted by [County Court] together improperly characterized the waiver as ‘an absolute bar to the taking of a direct appeal and the loss of attendant rights to counsel and poor person relief,’ as well as to ‘all postconviction relief separate from the direct appeal’ ” (People v. McMillian, 185 A.D.3d 1420, 1421, 127 N.Y.S.3d 669 [4th Dept. 2020], lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 306, 155 N.E.3d 799 [2020], quoting People v. Thomas, 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]; see People v. Thornton, 213 A.D.3d 1332, 1332, 183 N.Y.S.3d 237 [4th Dept. 2023], lv denied 39 N.Y.3d 1157, 190 N.Y.S.3d 713, 211 N.E.3d 1166 [2023]). Nevertheless, we perceive no basis in the record to exercise our power to modify the sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]). We note, however, that the certificate of disposition must be amended to correct a clerical error (see People v. Brown, 221 A.D.3d 1565, 1566, 200 N.Y.S.3d 629 [4th Dept. 2023]; People v. Thurston, 208 A.D.3d 1629, 1630, 174 N.Y.S.3d 663 [4th Dept. 2023]). The certificate of disposition erroneously states that defendant was sentenced to a determinate term of 25 years’ imprisonment on count 4, robbery in the first degree, and should be amended to correctly reflect that defendant was sentenced to a determinate term of five years’ imprisonment on that count.