Opinion
112246
11-03-2022
The PEOPLE of the State of New York, Respondent, v. Heaven PULESKI, Appellant.
Matthew C. Hug, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Matthew C. Hug, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Egan Jr., J.P., Aarons, Ceresia, Fisher and McShan, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Schenectady County (Matthew J. Sypniewski, J.), rendered June 28, 2019, convicting defendant upon her plea of guilty of the crime of manslaughter in the first degree.
Defendant was charged by indictment with various crimes, including murder in the second degree, manslaughter in the first degree, concealment of a human corpse and endangering the welfare of a child, after the remains of her three-month-old child were found in a garbage bag. In satisfaction of the indictment, defendant pleaded guilty to manslaughter in the first degree and purportedly waived the right to appeal. In accordance with the plea agreement, County Court sentenced defendant, as a second felony offender, to 15 years in prison, to be followed by five years of postrelease supervision. Defendant appeals.
We agree with defendant that her waiver of the right to appeal is invalid. The written waiver executed by defendant is "overbroad and inaccurate" ( People v. Williams, 203 A.D.3d 1398, 1398, 164 N.Y.S.3d 342 [3d Dept. 2022], lv denied 38 N.Y.3d 1036, 169 N.Y.S.3d 230, 189 N.E.3d 337 [2022] ; see People v. Mont, 207 A.D.3d 960, 960, 170 N.Y.S.3d 513 [3d Dept. 2022] ). Moreover, County Court's colloquy did not overcome these defects by ensuring that defendant understood that some appellate and collateral review survived (see People v. Nisby, 207 A.D.3d 876, 876, 172 N.Y.S.3d 190 [3d Dept.2022], lv denied 38 N.Y.3d 1189, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Sept. 28, 2022] ; People v. Darby, 206 A.D.3d 1165, 1166, 170 N.Y.S.3d 279 [3d Dept. 2022], lv denied 38 N.Y.3d 1149, 174 N.Y.S.3d 50, 194 N.E.3d 757 [2022] ). In light of the invalid appeal waiver, defendant's challenge to the severity of her sentence is not precluded (see People v. Knowlton, 207 A.D.3d 1002, 1003, 170 N.Y.S.3d 921 [3d Dept. 2022] ; People v. Worley, 206 A.D.3d 1367, 1367, 168 N.Y.S.3d 706 [3d Dept. 2022] ). That said, the sentence was significantly less than the statutory maximum (see Penal Law § 70.06[3][b] ) and, considering the nature of the crime, we cannot conclude that the agreed-upon sentence is "unduly harsh or severe" ( CPL 470.15[6][b] ), so as to warrant a reduction in the interest of justice (see People v. Stevens, 204 A.D.3d 1160, 1161, 164 N.Y.S.3d 532 [3d Dept. 2022], lv denied 38 N.Y.3d 1153, 174 N.Y.S.3d 42, 194 N.E.3d 749 [2022] ; People v. Gonzalez, 186 A.D.3d 1832, 1832–1833, 129 N.Y.S.3d 357 [3d Dept. 2020] ).
Egan Jr., J.P., Aarons, Ceresia, Fisher and McShan, JJ., concur.
ORDERED that the judgment is affirmed.