PEOPLE v. GENTRY (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Matthew J. Sypniewski, J.), rendered December 11, 2019, convicting defendant upon his plea of guilty of the crime of robbery in the second degree.

Defendant pleaded guilty to the fourth count of a nine-count indictment that charged him with robbery in the second degree and agreed to waive his right to appeal.  In accordance with the plea agreement, County Court sentenced defendant, as a second felony offender, to a prison term of 61/212 years, to be followed by five years of postrelease supervision.  Defendant appeals.

Initially, the People concede – and our review of the record confirms – that defendant's waiver of his right to appeal is invalid, as the written waiver contains inaccurate and overbroad language, and the deficiencies therein were not cured by County Court's colloquy (see People v. Arthur, 228 A.D.3d 1133, 1133–1134, 213 N.Y.S.3d 543 [3d Dept. 2024];  People v. Tucker, 222 A.D.3d 1038, 1039, 200 N.Y.S.3d 798 [3d Dept. 2023];  People v. Booth, 221 A.D.3d 1283, 1284, 200 N.Y.S.3d 501 [3d Dept. 2023]).  As such, defendant's challenge to the severity of the sentence is not precluded (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Arthur, 228 A.D.3d at 1134, 213 N.Y.S.3d 543;  People v. Steward, 220 A.D.3d 982, 984, 198 N.Y.S.3d 611 [3d Dept. 2023], lv denied 40 N.Y.3d 1082, 202 N.Y.S.3d 774, 225 N.E.3d 893 [2023]).

In that regard, defendant contends that, given his young age of 20 years old, troubled upbring, substance abuse issues and limited education, the sentence is unduly harsh.  Considering such information, as well as other relevant circumstances, including his criminal history, the advantageous nature of the plea and the fact that the agreed-upon sentence is less than two years above the statutory minimum permissible prison term (see Penal Law § 70.06[6][b]), we are unpersuaded that the sentence is unduly harsh or severe, and decline to take corrective action to modify the sentence in the interest of justice (see CPL 470.15[6][b]).

ORDERED that the judgment is affirmed.

Aarons, J.P., Pritzker, Ceresia, Fisher and Mackey, JJ., concur.