PEOPLE v. MORRISON (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 period of postrelease supervision to 21/212 years and as modified the judgment is affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), defendant contends that he did not validly waive his right to appeal and that his sentence is unduly harsh and severe. As defendant contends, his waiver of the right to appeal is invalid because Supreme Court's oral colloquy “mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal, and there was no clarification that appellate review remained available for certain issues” (People v. Marshall, 214 A.D.3d 1360, 1361, 185 N.Y.S.3d 457 [4th Dept. 2023] [internal quotation marks omitted]; see People v. Thomas, 34 N.Y.3d 545, 564-566, 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]).

As part of the plea agreement, the court stated that, in exchange for his guilty plea, it would sentence defendant to a prison term of 31/212 years with a 21/212-year period of postrelease supervision. We agree with defendant that the court erred when, at sentencing, it imposed a 3-year period of postrelease supervision, which departed from the express terms of the plea agreement, despite the fact that the court acknowledged that there had been no material changes in defendant's circumstances since the plea (see People v. Smith, 101 A.D.3d 1677, 1677, 956 N.Y.S.2d 381 [4th Dept. 2012], lv denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013]). Although defendant failed to preserve his contention for our review (see People v. Sprague, 82 A.D.3d 1649, 1649, 919 N.Y.S.2d 433 [4th Dept. 2011], lv denied 17 N.Y.3d 801, 929 N.Y.S.2d 110, 952 N.E.2d 1105 [2011]; see also Smith, 101 A.D.3d at 1677, 956 N.Y.S.2d 381), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Thus, we modify the judgment by reducing the period of postrelease supervision to 21/212 years, in accordance with the court's sentencing promise. As modified, the sentence is not unduly harsh or severe.