PEOPLE v. MOORE (2022)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered May 21, 2019, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

Defendant pleaded guilty to criminal possession of a weapon in the second degree in satisfaction of a three-count indictment with the understanding that he would be sentenced to a term of imprisonment of no more than nine years or less than 31/212 years, to be followed by five years of postrelease supervision.  Defendant also purportedly waived the right to appeal.  County Court thereafter sentenced defendant to 41/212 years in prison, to be followed by five years of postrelease supervision.  Defendant appeals.

We affirm.  Initially, the People concede, and we agree, that defendant's waiver of the right to appeal is invalid as the written waiver is overbroad in warning of an absolute bar to the pursuit of all potential remedies, and County Court's colloquy was not sufficient to cure this defect (see People v. Lunan, 196 A.D.3d 969, 969–970, 148 N.Y.S.3d 408 [2021];  People v. Barrales, 179 A.D.3d 1313, 1314, 118 N.Y.S.3d 263 [2020]).  As a result, defendant's challenge to the severity of the sentence is not precluded.  Nevertheless, the sentence is within the agreed-upon range and we discern no extraordinary circumstances or abuse of discretion warranting a modification of the sentence in the interest of justice (see People v. Beach, 197 A.D.3d 1440, 1441, 151 N.Y.S.3d 652 [2021];  People v. Brito, 184 A.D.3d 900, 901, 124 N.Y.S.3d 749 [2020]).

Defendant also contends that his right to due process was violated by certain remarks made by the prosecutor during the sentencing hearing.  “Due process protections ․ are in play only if an offender is sentenced on the basis of ‘materially untrue’ facts or misinformation” (People v. Hansen, 99 N.Y.2d 339, 345, 756 N.Y.S.2d 122, 786 N.E.2d 21 [2003], quoting People v. Naranjo, 89 N.Y.2d 1047, 1049, 659 N.Y.S.2d 826, 681 N.E.2d 1272 [1997]).  Accordingly, “to comply with due process the sentencing court must assure itself that the information upon which it bases the sentence is reliable and accurate” (People v. Naranjo, 89 N.Y.2d at 1049, 659 N.Y.S.2d 826, 681 N.E.2d 1272 [internal quotation marks, brackets, ellipsis and citation omitted];  see People v. Outley, 80 N.Y.2d 702, 712, 594 N.Y.S.2d 683, 610 N.E.2d 356 [1993]).

In advocating for a nine-year prison sentence, the prosecutor informed County Court during the sentencing hearing that, although defendant had no criminal record, interviews with police officers allegedly familiar with defendant revealed that “from the time that he was a child, [defendant] has been involved in various antisocial behaviors, including assaults, trespasses [and] mischiefs and ․ [that] he was a member of the Bloods, a street gang.”  The prosecutor also informed County Court that defendant was currently being investigated for his participation in a recent shooting.  Defense counsel, seeking a sentence “closer to the minimum” of the sentencing range, objected to the prosecutor's remarks as unsubstantiated and inflammatory and requested that County Court strike them from the record.  Although County Court denied the request to strike the prosecutor's remarks, the court disregarded them as “innuendo” and expressly relied on a balance between the facts surrounding the crime and the information contained in the presentence investigation report, including defendant's lack of a criminal record, his learning disability and his mental health issues.  The court also cited defendant's “stellar good citizenship and behavior” while on pretrial release and his letter of recommendation in imposing a sentence that was one year longer than the statutory minimum.  In light of the foregoing, the record does not support a finding that defendant's sentence was based upon materially untrue facts or misinformation so as to violate his right to due process (see People v. Purisic, 130 A.D.3d 1095, 1096, 12 N.Y.S.3d 637 [2015], lv denied 26 N.Y.3d 970, 18 N.Y.S.3d 607, 40 N.E.3d 585 [2015];  People v. Andujar, 290 A.D.2d 654, 657, 736 N.Y.S.2d 159 [2002], lv denied 98 N.Y.2d 648, 745 N.Y.S.2d 506, 772 N.E.2d 609 [2002]).

Finally, we reject defendant's contention that County Court abused its discretion in refusing to strike the prosecutor's remarks.  Courts may consider reliable information concerning uncharged criminal conduct in sentencing a defendant (see People v. Naranjo, 89 N.Y.2d at 1049, 659 N.Y.S.2d 826, 681 N.E.2d 1272).  Defendant was given an opportunity to contest the remarks and the court characterized them as merely “what the People suspect” and “innuendo.”  “[I]t was for the court to determine what bearing, if any, [the remarks] should have on the sentence to be imposed” (People v. Brodus, 151 A.D.3d 1469, 1470, 54 N.Y.S.3d 600 [2017]), and the court chose to disregard them as unreliable.  To the extent that defendant argues that the unredacted remarks might cause prejudice to him in the future, we are satisfied that, by expressly disregarding the remarks in response to defendant's objection, the court prevented such prejudice (see People v. Rogers, 156 A.D.3d 1350, 1350, 65 N.Y.S.3d 830 [2017], lv denied 31 N.Y.3d 986, 77 N.Y.S.3d 664, 102 N.E.3d 441 [2018];  People v. Serrano, 81 A.D.3d 753, 754, 916 N.Y.S.2d 509 [2011], lv denied 17 N.Y.3d 801, 929 N.Y.S.2d 109, 952 N.E.2d 1104 [2011]).

ORDERED that the judgment is affirmed.

Colangelo, J.

Garry, P.J., Egan Jr., Pritzker and Ceresia, JJ., concur.