PEOPLE v. KRATZ (2024)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence, and as modified the judgment is affirmed, and the matter is remitted to Onondaga County Court for resentencing.

Memorandum: Defendant appeals from a judgment convicting him, upon a plea of guilty, of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). We agree with defendant that his “purported waiver of the right to appeal is not enforceable inasmuch as the totality of the circumstances fails to reveal that defendant ‘understood the nature of the appellate rights being waived’ ” (People v. Youngs, 183 A.D.3d 1228, 1228, 121 N.Y.S.3d 701 [4th Dept. 2020], lv denied 35 N.Y.3d 1050, 127 N.Y.S.3d 826, 151 N.E.3d 507 [2020], quoting People v. Thomas, 34 N.Y.3d 545, 559, 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. Williams, 136 A.D.3d 1280, 1281, 24 N.Y.S.3d 464 [4th Dept. 2016], lv denied 27 N.Y.3d 1141, 39 N.Y.S.3d 123, 61 N.E.3d 522 [2016], lv denied 29 N.Y.3d 954, 54 N.Y.S.3d 384, 76 N.E.3d 1087 [2017]). “Although ambiguities in a court's explanation may be cured by adequate clarifying language, which may be provided either in a written waiver or in the oral colloquy,” we conclude that “such language is absent from the record in the appeal[ ] before us” (People v. Parker, 189 A.D.3d 2065, 2066, 138 N.Y.S.3d 758 [4th Dept. 2020], lv denied 36 N.Y.3d 1122, 146 N.Y.S.3d 191, 169 N.E.3d 549 [2021]).

Nevertheless, we reject defendant's contention that the bargained-for sentence of incarceration is unduly harsh and severe. We note, however, that a discrepancy between the sentencing minutes and the certificate of conviction requires vacatur of the sentence imposed. At sentencing, County Court sentenced defendant to a determinate sentence of nine years of incarceration, plus four years of postrelease supervision. The certificate of conviction, however, recites that the sentence for the conviction is nine years of incarceration, plus five years of postrelease supervision. Given the discrepancy between the sentencing minutes and the certificate of conviction, we modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing (see People v. Delp, 156 A.D.3d 1450, 1453, 68 N.Y.S.3d 247 [4th Dept. 2017], lv denied 31 N.Y.3d 983, 77 N.Y.S.3d 660, 102 N.E.3d 437 [2018]; see generally People v. Bradford, 118 A.D.3d 1254, 1257-1258, 987 N.Y.S.2d 727 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014]).

We have considered defendant's remaining contention and conclude that it does not warrant reversal or further modification of the judgment.