THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JAZZMIN ELMORE DEFENDANT APPELLANT APPEAL NO (2023)

MEMORANDUM AND ORDER

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

Memorandum: On appeal from a judgment convicting her of, inter alia, criminal sale of a firearm in the third degree (Penal Law § 265.11 [1]), defendant contends that her waiver of the right to appeal is invalid and does not foreclose her challenge to the severity of the negotiated sentence. As defendant contends and the People correctly concede, defendant's waiver of the right to appeal is invalid inasmuch as “the perfunctory inquiry made by [Supreme] Court was insufficient to establish that the court engage[d] ․ defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v Soutar, 170 AD3d 1633, 1634 [4th Dept 2019], lv denied 34 NY3d 938 [2019] [internal quotation marks omitted]; see generally People v Thomas, 34 NY3d 545, 559-564 [2019], cert denied — US —, 140 S Ct 2634 [2020]). We nevertheless conclude that the sentence is not unduly harsh or severe.

Entered: February 3, 2023

Ann Dillon Flynn

Clerk of the Court