People v. Sequin

201 A.D.3d 1252

157 N.Y.S.3d 797 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Nellie SEQUIN, Appellant.

110461

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

Calendar Date: December 30, 2021

Decided and Entered: January 27, 2022

Edward S. Graves, Indian Lake, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Nichole M. Sands of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Clinton County (Favreau, J.), rendered April 12, 2018, convicting defendant upon her plea of guilty of the crime of unlawful manufacture of methamphetamine in the third degree.

In full satisfaction of a two-count indictment, defendant agreed to plead guilty to unlawful manufacture of methamphetamine in the third degree with the understanding that she would be sentenced to a prison term of two years – followed by one year of postrelease supervision – and that a fine would be imposed. The plea agreement also required defendant to waive her right to appeal. Defendant pleaded guilty in conformity with the plea agreement, and the matter was adjourned for sentencing. County Court thereafter imposed the contemplated prison term and, as relevant here, a $5,000 fine. This appeal ensued.

Defendant has completed both her term of imprisonment and her period of postrelease supervision but argues that the $5,000 fine imposed as a component of her sentence is harsh and excessive. Preliminarily, defendant's challenge to the severity of the fine survives even a valid appeal waiver because the amount of the fine "was not included in the terms of the plea bargain" ( People v. Ortiz, 104 A.D.3d 1202, 1203, 960 N.Y.S.2d 587 [2013] ; see People v. Hernandez, 140 A.D.3d 1521, 1523, 34 N.Y.S.3d 698 [2016], lv denied 28 N.Y.3d 971, 43 N.Y.S.3d 258, 66 N.E.3d 4 [2016] ). That said, defendant was advised that a fine was part of her plea agreement, County Court informed defendant that the maximum fine she could have faced absent such agreement was $5,000 and a review of the sentencing minutes reveals that the amount of the fine to be imposed was left to County Court's discretion (compare People v. Sanchez, 164 A.D.3d 1545, 1547, 84 N.Y.S.3d 589 [2018], lv denied 32 N.Y.3d 1115, 91 N.Y.S.3d 366, 115 N.E.3d 638 [2018] ; People v. Lohnes, 112 A.D.3d 1148, 1149, 976 N.Y.S.2d 719 [2013] ). As defendant voiced no objection to such amount at the time of sentencing, her challenge to the severity of the fine is unpreserved for our review (see People v. Hernandez, 140 A.D.3d at 1523, 34 N.Y.S.3d 698 ; People v. Wingo, 103 A.D.3d...