Opinion
1105 KA 18-00561
03-19-2021
The PEOPLE of the State of New York, Respondent, v. Jordan T. SMITH, Defendant-Appellant.
CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the resentence so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the sentences of imprisonment imposed on counts one and two of the indictment to consecutive determinate terms of 21/2 years, and as modified the resentence is affirmed.
Memorandum: Defendant appeals from a resentence upon his conviction of three counts of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39 [1] ). We agree with defendant that the purported waiver of the right to appeal is not enforceable inasmuch as the totality of the circumstances fails to reveal that defendant "understood the nature of the appellate rights being waived" ( People v. Thomas , 34 N.Y.3d 545, 559, 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] ). Here, County Court provided no oral explanation of the waiver of the right to appeal and the written waiver executed by defendant "mischaracterized the waiver of the right to appeal, portraying it in effect as an absolute bar to the taking of an appeal" ( People v. Youngs , 183 A.D.3d 1228, 1229, 121 N.Y.S.3d 701 [4th Dept. 2020], lv denied 35 N.Y.3d 1050, 127 N.Y.S.3d 826, 151 N.E.3d 507 [2020] [internal quotation marks omitted]; see also People v. Brito , 184 A.D.3d 900, 900-901, 124 N.Y.S.3d 749 [3d Dept. 2020] ). We note that the better practice is for the court to use the Model Colloquy, which "neatly synthesizes ... the governing principles" ( People v. Dozier , 179 A.D.3d 1447, 1447, 119 N.Y.S.3d 318 [4th Dept. 2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020] [internal quotation marks omitted]).
We further agree with defendant that, under the circumstances of this case, the resentence is unduly harsh and severe. We therefore modify the resentence as a matter of discretion in the interest of justice by reducing the sentences of imprisonment imposed on counts one and two of the indictment to determinate terms of 21/2 years (see Penal Law § 70.70 [2] [a] [i] ), which will continue to run consecutively to each other and to the third count, and will be followed by the two years of postrelease supervision imposed by the court (see generally CPL 470.15 [6] [b] ; 470.20 [6]; People v. Delgado , 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675 [1992] ).