People v. Vezequ

205 A.D.3d 1138

167 N.Y.S.3d 638

The PEOPLE of the State of New York, Respondent,

v.Mindy VEZEQU, Appellant.

109977B

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

Calendar Date: April 15, 2022

Decided and Entered: May 12, 2022

Aaron A. Louridas, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.

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

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered March 21, 2017, convicting defendant upon her plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree. Pursuant to the terms of the plea agreement, defendant purportedly waived the right to appeal and executed a written waiver in open court. Defendant failed to appear for sentencing and a bench warrant was issued. When defendant eventually appeared, County Court sentenced her, as a second felony offender, to three years in prison, to be followed by three years of postrelease supervision. Defendant appealed, and this Court rejected counsel's Anders brief, withheld decision and assigned new counsel to represent defendant on the appeal ( 192 A.D.3d 1194, 139 N.Y.S.3d 913 [2021] ).

Initially, we agree with defendant that her appeal waiver was not knowing, intelligent and voluntary. The written appeal waiver signed by defendant contained overbroad language indicating that she was relinquishing any right to appeal so long as County Court sentenced her in accordance with the plea agreement and the colloquy "did not overcome this defect by ensuring that defendant understood that some appellate rights survive the appeal waiver" ( People v. Robinson, 195 A.D.3d 1235, 1236, 145 N.Y.S.3d 864 [2021] ; see People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Stratton, 201 A.D.3d 1201, 1202, 159 N.Y.S.3d 763 [2022] ). Accordingly, defendant's appeal waiver was invalid.

To the extent that defendant challenges County Court's denial of her request, made for the first time at sentencing, that she be allowed to participate in the judicial diversion program, defendant did not follow the statutory procedures for participation in the program (see CPL 216.05[1], [3] ; People v. Miller, 154 A.D.3d 1002, 1003, 63 N.Y.S.3d 112 [2017] ). Nonetheless, "[c]ourts are afforded great deference in making judicial diversion determinations" ( People v. Williams, 105 A.D.3d 1428, 1428, 963 N.Y.S.2d 899 [2013], lv denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ; accord People v. Powell, 110 A.D.3d 1383, 1384, 973 N.Y.S.2d 870 [2013] ) and, given the colloquy between the People, defense counsel and County Court, which reflected that defendant had previously been terminated from a judicial diversion program, we discern no abuse of discretion in the court's denial of defendant's request. Finally, we reject defendant's contention that her sentence is harsh and excessive.¹ The sentence is within the permissible statutory range (see Penal Law § 70.70[1][b] ; 3[b][ii]) and, given defendant's criminal history, we find no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v. Barzee, 190 A.D.3d 1016, 1022, 138 N.Y.S.3d 718 [2021], lv denied 36 N.Y.3d 1094, 144 N.Y.S.3d 110, 167 N.E.3d 1245 [2021] ; People v....