Opinion
915 KA 20-01530
02-03-2023
The PEOPLE of the State of New York, Respondent, v. Jazzmin ELMORE, Defendant-Appellant. (Appeal No. 2.)
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her of, inter alia, criminal sale of a firearm in the third degree ( Penal Law § 265.11 [1] ), defendant contends that her waiver of the right to appeal is invalid and does not foreclose her challenge to the severity of the negotiated sentence. As defendant contends and the People correctly concede, defendant's waiver of the right to appeal is invalid inasmuch as "the perfunctory inquiry made by [Supreme] Court was insufficient to establish that the court engage[d] ... defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Soutar , 170 A.D.3d 1633, 1634, 94 N.Y.S.3d 899 [4th Dept. 2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 726, 133 N.E.3d 430 [2019] [internal quotation marks omitted]; see generally People v. Thomas , 34 N.Y.3d 545, 559-564, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ). We nevertheless conclude that the sentence is not unduly harsh or severe.