PEOPLE v. FEHER (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence imposed on count one of the indictment to an indeterminate term of imprisonment of 2 to 4 years, and as modified the judgment is affirmed.

Memorandum:  Defendant appeals from a judgment convicting him, upon his plea of guilty, of burglary in the third degree (Penal Law § 140.20) and grand larceny in the fourth degree (§ 155.30[1] ).  We conclude that defendant validly waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. James, 155 A.D.3d 1094, 1095, 64 N.Y.S.3d 350 [3d Dept. 2017], lv denied 30 N.Y.3d 1116, 77 N.Y.S.3d 341, 101 N.E.3d 982 [2018];  People v. Gibson, 147 A.D.3d 1507, 1507–1508, 47 N.Y.S.3d 612 [4th Dept. 2017], lv. denied 29 N.Y.3d 1032, 62 N.Y.S.3d 301, 84 N.E.3d 973 [2017] ).  Defendant's valid waiver of the right to appeal forecloses his contention that County Court abused its discretion in terminating him from the drug court program (see People v. McKay, 106 A.D.3d 837, 838, 965 N.Y.S.2d 879 [2d Dept. 2013], lv denied 21 N.Y.3d 1006, 971 N.Y.S.2d 258, 993 N.E.2d 1281 [2013];  People v. Schwandner, 67 A.D.3d 1481, 1481, 888 N.Y.S.2d 456 [4th Dept. 2009], lv denied 14 N.Y.3d 805, 899 N.Y.S.2d 139, 925 N.E.2d 943 [2010];  People v. Ephram, 47 A.D.3d 497, 497, 849 N.Y.S.2d 544 [1st Dept. 2008], lv denied 10 N.Y.3d 810, 857 N.Y.S.2d 44, 886 N.E.2d 809 [2008];  cf. People v. Peck, 90 A.D.3d 1500, 1501, 936 N.Y.S.2d 797 [4th Dept. 2011];  see generally People v. Dillon, 61 A.D.3d 1221, 1221–1222, 877 N.Y.S.2d 509 [3d Dept. 2009], lv denied 14 N.Y.3d 840, 901 N.Y.S.2d 146, 927 N.E.2d 567 [2010] ).

Defendant's waiver of the right to appeal does not, however, foreclose his further contention that the sentence imposed on count one of the indictment violated the terms of the plea bargain (see People v. Copes, 145 A.D.3d 1639, 1639, 44 N.Y.S.3d 833 [4th Dept. 2016], lv denied 28 N.Y.3d 1182, 52 N.Y.S.3d 709, 75 N.E.3d 101 [2017];  People v. Harris, 142 A.D.3d 557, 557, 36 N.Y.S.3d 211 [2d Dept. 2016];  People v. Jones, 77 A.D.3d 1178, 1178, 909 N.Y.S.2d 407 [3d Dept. 2010], lv. denied 16 N.Y.3d 832, 921 N.Y.S.2d 196, 946 N.E.2d 184 [2011] ), and the People correctly concede that the sentence on that count did, in fact, exceed the sentence promised in the plea bargain (see generally People v. Selikoff, 35 N.Y.2d 227, 241, 360 N.Y.S.2d 623, 318 N.E.2d 784 [1974], cert denied 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 [1975] ).  Although defendant failed to preserve that contention for appellate review (see People v. Williams, 27 N.Y.3d 212, 219–225, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see People v. Smith, 160 A.D.3d 1475, 1475, 72 N.Y.S.3d 910 [4th Dept. 2018] ).  In light of the parties' joint request for specific performance of the plea bargain rather than vacatur of the guilty plea, we modify the judgment by reducing the sentence imposed on count one to an indeterminate term of imprisonment of 2 to 4 years as contemplated by the plea bargain (see People v. Marrero, 250 A.D.2d 624, 625, 673 N.Y.S.2d 152 [2d Dept. 1998];  People v. Annunziata, 105 A.D.2d 709, 709, 481 N.Y.S.2d 148 [2d Dept. 1984] ).

Defendant's challenge to the severity of his sentence as modified is foreclosed by his valid waiver of the right to appeal (see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).  Defendant's reliance on People v. Boyzuck, 72 A.D.3d 1530, 900 N.Y.S.2d 530 (4th Dept. 2010) is misplaced.  In Boyzuck, we held that the defendant's valid appeal waiver did “not preclude her from challenging the severity of the sentence inasmuch as the court's statements concerning the maximum sentence ․ were inconsistent, confusing and misleading” (id. at 1530, 900 N.Y.S.2d 530).  Here, in contrast, the court's evolving statements regarding defendant's maximum exposure on count one simply tracked the ongoing plea negotiations and were not misleading, inconsistent, or confusing.

Finally, we note that the certificate of conviction contains incorrect dates for the underlying offenses, and it must therefore be amended to reflect the correct dates recited in the uniform sentence and commitment sheet (see People v. Curtis, 162 A.D.3d 1758, 1758, 76 N.Y.S.3d 443 [4th Dept. 2018] ).