People v. Robinson

• Decision Date: 17 June 2021
• Docket Number: 110789, 111234
• Citation: 195 A.D.3d 1235,145 N.Y.S.3d 864 (Mem)
• Parties: The PEOPLE of the State of New York, Respondent, v. Amanda ROBINSON, Appellant.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 1235

145 N.Y.S.3d 864 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Amanda ROBINSON, Appellant.

110789, 111234

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

Calendar Date: April 20, 2021

Decided and Entered: June 17, 2021

Adam G. Parisi, Schenectady, for appellant.

P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeals (1) from a judgment of the Supreme Court (Lynch, J.), rendered August 22, 2018 in Albany County, convicting defendant upon her plea of guilty of the crime of criminal possession of a controlled substance in the third degree, and (2) by permission, from an order of said court, entered May 15, 2019 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was charged in an indictment with one count of criminal possession of a controlled substance in the second degree and one count of criminal possession of a controlled substance in the third degree. Pursuant to a negotiated agreement, defendant pleaded guilty to one count of criminal possession of a controlled substance in the third degree, admitting that she possessed cocaine, and purportedly waived her right to appeal. Supreme Court thereafter sentenced defendant, in accordance with the terms of the plea agreement, to a prison term of 4½ years to be followed by two years of postrelease supervision. Defendant's subsequent motion to vacate the judgment of conviction pursuant to CPL article 440 was denied without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the denial of her CPL article 440 motion.

We affirm. Initially, we agree with defendant that she did not knowingly, intelligently and voluntarily waive the right to appeal. The written appeal waiver that defendant signed contained overbroad language that indicated that she was giving up the right to appeal so long as Supreme Court sentenced her in accordance with the plea agreement. A review of the plea allocution reveals that Supreme Court did not overcome this defect by ensuring that defendant understood that some appellate rights survive the appeal waiver (see People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Aponte, 190 A.D.3d 1031, 1032, 138 N.Y.S.3d 724 [2021] ; People v. Brito, 184 A.D.3d 900, 901–902, 124 N.Y.S.3d 749 [2020] ). Defendant's contention that the agreed-upon sentence was harsh and excessive has been rendered moot as she has already served her sentence and been released (see People v. McLean, 185 A.D.3d 1089, 1089, 124 N.Y.S.3d 883 [2020] ; People v. Sanford, 171 A.D.3d 1405, 1407, 99 N.Y.S.3d 453 [2019] ). In any event, we discern no abuse of discretion or extraordinary circumstances that would warrant modification of the sentence in the interest of justice (see People v. Douglas, 162 A.D.3d 1212, 1217, 79 N.Y.S.3d 352 [2018], lv denied 31 N.Y.3d 1147, 83 N.Y.S.3d 428, 108 N.E.3d 502 [2018] ).

Finally, we find no error or abuse of discretion in Supreme Court's denial of defendant's CPL article 440 motion to vacate the judgment of conviction, without a hearing. Defendant's claim, made in a letter attached to her motion concerning what counsel advised her about her...