People v. Smith

• Decision Date: 01 April 2021
• Docket Number: 109752
• Citation: 141 N.Y.S.3d 733 (Mem),193 A.D.3d 1114
• Parties: The PEOPLE of the State of New York, Respondent, v. Afreka S. SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 1114

141 N.Y.S.3d 733 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Afreka S. SMITH, Appellant.

109752

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

Calendar Date: March 5, 2021

Decided and Entered: April 1, 2021

Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered September 11, 2017, convicting defendant upon her plea of guilty of the crime of possessing an obscene sexual performance by a child.

Defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging her with one count of possessing an obscene sexual performance by a child. The plea agreement, which required defendant to waive her right to appeal, contemplated that defendant would plead guilty to the charged crime with the understanding that she would be sentenced to a 10–year term of probation. Defendant pleaded guilty in conformity with the agreement, and the agreed-upon probationary period was imposed. This appeal ensued.

The People, citing People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 (2019), concede that defendant's waiver of the right to appeal is invalid, and County Court's brief oral colloquy with defendant fails to demonstrate that defendant "understood the distinction that some appellate review survived" ( id. at 561, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see People v. Deming, 190 A.D.3d 1193, 1194, 136 N.Y.S.3d 918 [2021] ; People v. Brunson, 185 A.D.3d 1300, 1300 n., 128 N.Y.S.3d 338 [2020], lv denied 36 N.Y.3d 928, 135 N.Y.S.3d 345, 159 N.E.3d 1112 [2020] ). Accordingly, defendant's challenge to the sentence imposed by County Court is not precluded (see People v. Gonzalez, 186 A.D.3d 1832, 1832, 129 N.Y.S.3d 357 [2020] ). That said, although defendant expressed remorse for her actions and has no prior criminal history, given the disturbing nature of the underlying crime, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the agreed-upon probationary sentence in the interest of justice (see generally People v. Hatch, 165 A.D.3d 1321, 1322, 82 N.Y.S.3d 744 [2018], lv denied 32 N.Y.3d 1125, 93 N.Y.S.3d 263, 117 N.E.3d 822 [2018] ; People v. Matthew NN., ...