Opinion
818 KA 18-02220
11-10-2022
The PEOPLE of the State of New York, Respondent, v. Stanley STEWART, Defendant-Appellant.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [1] ), defendant contends that his sentence is unduly harsh and severe and that the waiver of the right to appeal does not foreclose his challenge to the severity of his sentence. As the People correctly concede, defendant did not validly waive his right to appeal "because County Court's oral colloquy utterly mischaracterized the nature of the right to appeal ..., inasmuch as the court's advisement as to the rights relinquished [and retained by defendant] was incorrect and irredeemable under the circumstances" ( People v. Carter , 200 A.D.3d 1719, 1719, 155 N.Y.S.3d 846 [4th Dept. 2021], lv denied 38 N.Y.3d 949, 165 N.Y.S.3d 463, 185 N.E.3d 984 [2022] [internal quotation marks omitted]; see People v. Thomas , 34 N.Y.3d 545, 562, 565-566, 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] ; People v. Crogan , 181 A.D.3d 1212, 1212, 118 N.Y.S.3d 484 [4th Dept. 2020], lv denied 35 N.Y.3d 1026, 126 N.Y.S.3d 31, 149 N.E.3d 869 [2020] ). We nevertheless perceive no basis in the record for the exercise of our authority to reduce the sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b] ).