PEOPLE v. WILLIAMS BOOM AL (2025)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Mark Caruso, J.), rendered October 20, 2021, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree and criminally negligent homicide.

In 2021, defendant was charged in a 13–count indictment with various crimes, including that he sold the victim a controlled substance that contained fentanyl, which resulted in the victim's overdose and death.  In satisfaction of the indictment, defendant pleaded guilty to criminal possession of a controlled substance in the third degree and criminally negligent homicide, and purportedly waived his right to appeal.  Consistent with the plea agreement, County Court thereafter sentenced defendant, as a second felony offender, to 10 years in prison, to be followed by three years of postrelease supervision, for the criminal possession of a controlled substance conviction, and to a lesser concurrent sentence for the criminally negligent homicide conviction.  Defendant appeals.

We affirm.  Initially, we agree with defendant that his waiver of the right to appeal is invalid.  The written waiver executed by defendant was overly broad, and County Court's brief oral colloquy was not sufficient to cure the defects in the written waiver (see People v. Graham, 230 A.D.3d 1476, 1477, 218 N.Y.S.3d 736 [3d Dept. 2024];  People v. Appiah, 218 A.D.3d 1060, 1061, 195 N.Y.S.3d 153 [3d Dept. 2023], revd on other grounds 41 N.Y.3d 949, 207 N.Y.S.3d 37, 230 N.E.3d 1101 [2024]).

To the extent that defendant challenges the voluntariness and factual sufficiency of his plea, such arguments are unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion despite an opportunity to do so, and the narrow exception to the preservation requirement is inapplicable here (see People v. Booth, 221 A.D.3d 1283, 1284, 200 N.Y.S.3d 501 [3d Dept. 2023];  People v. Dunbar, 218 A.D.3d 931, 932, 193 N.Y.S.3d 397 [3d Dept. 2023], lv denied 40 N.Y.3d 950, 195 N.Y.S.3d 677, 217 N.E.3d 698 [2023]).  Further, although defendant correctly states the proposition that our authority to modify his sentence in the interest of justice is not predicated on his demonstration of extraordinary circumstances or an abuse of discretion by the sentencing court (see People v. Brisman, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 00123, *1 [Jan. 9, 2025];  People v. Baldwin, 39 N.Y.3d 1097, 1097–1099, 186 N.Y.S.3d 112, 206 N.E.3d 1255 [2023] [Wilson, J., concurring];  see also People v. Brenda WW., 222 A.D.3d 1188, 1193 n. 2, 203 N.Y.S.3d 211 [3d Dept. 2023]), considering defendant's criminal history and the seriousness of the underlying offenses, we do not find the agreed-upon concurrent sentences to be unduly harsh or severe (see People v. Bailey, 224 A.D.3d 1044, 1047, 205 N.Y.S.3d 546 [3d Dept. 2024]) and decline his invitation to reduce them in the interest of justice (see CPL 470.15[3][c]).¹  Finally, although County Court referred to defendant as a second felony offender at sentencing, he was actually sentenced as a second felony drug offender (compare Penal Law § 70.06[3][b];  [4][b], with Penal Law § 70.70[3][b][i]).  Accordingly, an amended uniform sentence and commitment form must be prepared to reflect defendant's status as a second felony drug offender (see People v. Labaff, 127 A.D.3d 1471, 1472, 7 N.Y.S.3d 682 [3d Dept. 2015], lv denied 26 N.Y.3d 931, 17 N.Y.S.3d 94, 38 N.E.3d 840 [2015]).

ORDERED that the judgment is affirmed, and matter remitted for entry of an amended uniform sentence and commitment form.

FOOTNOTES

1.   In his reply brief, defendant has withdrawn his contention that his sentence for criminal possession of a controlled substance was illegal.

McShan, J.

Garry, P.J., Lynch, Reynolds Fitzgerald and Fisher, JJ., concur.