PEOPLE v. ACOFF (2023)

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 of imprisonment imposed to a determinate term of five years, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting her upon a guilty plea of arson in the second degree (Penal Law § 150.15). As the People correctly concede, defendant's waiver of the right to appeal is invalid inasmuch as County Court's explanation that the waiver would foreclose any review by a higher court “utterly ‘mischaracterized the nature of the right [that] defendant was being asked to cede’ ” (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. Youngs, 183 A.D.3d 1228, 1228-1229, 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]). Defendant's conviction follows an incident wherein, under the influence of alcohol, defendant attempted to gain access to her locked apartment building by burning a hole in a plexiglass window with a lighter, resulting in the building itself catching fire. We agree with defendant that the sentence is unduly harsh and severe. We note that defendant contacted emergency services immediately upon the building catching fire, that she has previously and is currently engaged in treatment for alcohol abuse and mental health issues, and that the court credited her statement accepting responsibility and expressing remorse for the damage caused by her actions. Under the circumstances of this case, we modify the judgment as a matter of discretion in the interest of justice by reducing the sentence of imprisonment to a determinate term of five years, to be followed by the five-year period of postrelease supervision previously imposed by the court.