People v. Musella, 107518.

• Decision Date: 30 March 2017
• Docket Number: 107518.
• Parties: The PEOPLE of the State of New York, Respondent, v. Laura MUSELLA, Appellant.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1465
50 N.Y.S.3d 612

The PEOPLE of the State of New York, Respondent,
v.
Laura MUSELLA, Appellant.

107518.

Supreme Court, Appellate Division, Third Department, New York.

March 30, 2017.

50 N.Y.S.3d 612

Brian M. Quinn, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.

Before: McCARTHY, J.P., GARRY, ROSE, MULVEY and AARONS, JJ.

GARRY, J.

148 A.D.3d 1466

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered December 16, 2014, convicting defendant upon her plea of guilty of the crime of attempted burglary in the second degree (two counts).

In October 2013, defendant was arraigned on numerous charges stemming from multiple burglaries that she committed earlier that year. Thereafter, in satisfaction of all then-pending charges and pursuant to a negotiated plea agreement, defendant waived indictment and pleaded guilty to a superior court information (hereinafter SCI) that charged her with two counts

50 N.Y.S.3d 613

of attempted burglary in the second degree, a class D violent felony. In connection with her guilty plea, defendant also executed a written waiver of her right to appeal in open court. Consistent with the terms of the plea agreement, County Court imposed a prison sentence of five years on each count, to be served concurrently, followed by three years of postrelease supervision. County Court also ordered defendant to pay restitution in the amount of $28,000.65. Defendant now appeals.

Initially, we agree with defendant's contention that the appeal waiver was invalid. Our review of the plea colloquy reveals that County Court "failed to explain the significance of the waiver or articulate that an appeal waiver is ‘separate and distinct from those rights automatically forfeited upon a plea of guilty’ " (People v. Harris, 121 A.D.3d 1423, 1424, 995 N.Y.S.2d 410 [2014], lv. denied 25 N.Y.3d 989, 10 N.Y.S.3d 532, 32 N.E.3d 969 [2015], quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Lemon, 137 A.D.3d 1422, 1423, 27 N.Y.S.3d 726 [2016], lv. denied 27 N.Y.3d 1135, 39 N.Y.S.3d 116, 61 N.E.3d 515 [2016] ; People v. Bouton, 107 A.D.3d 1035, 1036, 967 N.Y.S.2d 200 [2013], lv. denied 21 N.Y.3d 1072, 974 N.Y.S.2d 321, 997 N.E.2d 146 [2013] ). Although County Court confirmed that defendant, prior to executing the written appeal waiver in open court, had a chance to review the appeal waiver with her attorney and that the waiver was fully explained to her, the court did not discuss or explain to defendant on the record the separate and distinct appellate rights that defendant was waiving or confirm that she was aware that she was specifically waiving these rights. Although the written waiver of appeal executed by defendant included language expressing the rights that she was waiving beyond those given up by entering a guilty plea, as it is not evident from the plea colloquy that defendant was in fact aware of the separate and distinct nature of her appellate rights, we are unable to find that the waiver of the right to appeal was

148 A.D.3d 1467

knowingly and intelligently made (see People v. Lemon, 137 A.D.3d at 1423, 27 N.Y.S.3d 726 ; People v. Bouton, 107 A.D.3d at 1036, 967 N.Y.S.2d 200 ; cf. People v. Larock, 139 A.D.3d 1241, 1242, 31 N.Y.S.3d 665 [2016], lv. denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016] ; People v. Lewis, 138 A.D.3d 1346, 1347, 30 N.Y.S.3d 387 [2016], lv. denied 28 N.Y.3d 1073, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016] ).

Defendant claims that the SCI was jurisdictionally defective as it did not apprise defendant of the conduct that was the subject of the accusations, and that the SCI failed to identify the crime that she intended to commit in the dwellings that she entered during the commission of her crimes. We disagree. While defendant's claim that the SCI was jurisdictionally defective survives her guilty plea (see People v. Jackson, 128 A.D.3d 1279, 1279, 9 N.Y.S.3d 739 [2015], lv. denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] ; People v. Brown, 75 A.D.3d 655, 656, 903 N.Y.S.2d 825 [2010] ), the SCI here specified the Penal Law section under which defendant was charged and, thus, sufficiently apprised her of the crime intended to be charged (see CPL 200.15, 200.50[7] ; People v. Mackey, 49 N.Y.2d 274, 279, 425 N.Y.S.2d 288, 401 N.E.2d 398 [1980] ; People v. Darrell, 145 A.D.3d 1316, 1318, 45 N.Y.S.3d 223 [2016] ; People v. Cruz, 104 A.D.3d 1022, 1023–1024, 960 N.Y.S.2d 741 [2013] ; People v. Brown, 75 A.D.3d at 656, 903 N.Y.S.2d 825 ).

Next, given the invalid appeal waiver, defendant's challenge to the severity of the sentence imposed is properly before us for review. Nonetheless, in view of the serious nature of defendant's crimes

50 N.Y.S.3d 614

and given that defendant received a sentence shorter than what could have been imposed under the terms of the plea agreement,...