PEOPLE v. HEFT (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Hyun Chin Kim, J.), rendered October 12, 2022, convicting her of criminal possession of a weapon in the second degree, upon her plea of guilty, and sentencing her to a determinate term of imprisonment of two years, to be followed by a period of postrelease supervision of five years.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed from a determinate term of imprisonment of two years, to be followed by a period of postrelease supervision of five years, to a determinate term of imprisonment of one year, to be followed by a period of postrelease supervision of five years;  as so modified, the judgment is affirmed.

Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived her right to appeal.  The County Court did not discuss the appeal waiver with the defendant until after the defendant had already admitted her guilt as part of the plea agreement (see People v. Blake, 210 A.D.3d 901, 178 N.Y.S.3d 201;  People v. Diallo, 196 A.D.3d 598, 598, 147 N.Y.S.3d 454).  Further, when the court raised the issue of the appeal waiver, the defendant, who had no known prior contact with the criminal justice system, advised the court that she had not discussed the waiver with her attorney, which required a pause in the proceedings to give her an opportunity to do so.  These circumstances, including the defendant's experience and background, demonstrate that the purported waiver of the right to appeal was invalid (see People v. Conley, 150 A.D.3d 1023, 55 N.Y.S.3d 320).

Pursuant to the Domestic Violence Survivors Justice Act (L 2019, ch 31, § 1;  L 2019, ch 55, § 1, part WW, § 1 [eff May 14, 2019];  hereinafter the DVSJA), courts may “impose reduced alternative, less severe, sentences in certain cases involving defendants who are victims of domestic violence” (People v. Burns, 207 A.D.3d 646, 648, 172 N.Y.S.3d 90).  Here, while the County Court granted the defendant's application for an alternative sentence under the DVSJA, we find that the sentence imposed should be reduced to the extent indicated herein (see People v. Addimando, 197 A.D.3d 106, 152 N.Y.S.3d 33).

BARROS, J.P., CONNOLLY, MILLER and WOOTEN, JJ., concur.