People v. Martin , 2022 NY Slip Op 00762 ( 2022 )

People v Martin (2022 NY Slip Op 00762)

People v Martin

2022 NY Slip Op 00762

Decided on February 4, 2022

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 4, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: PERADOTTO, J.P., LINDLEY, WINSLOW, AND BANNISTER, JJ.

53 KA 20-00294

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

DEZIRAE J. MARTIN, DEFENDANT-APPELLANT.

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.

JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Ontario County Court (Kristina Karle, J.), rendered October 30, 2019. The judgment convicted defendant, upon a plea of guilty, of burglary in the third degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting her, upon her plea of guilty, of burglary in the third degree (Penal Law § 140.20), defendant contends that her waiver of the right to appeal is unenforceable and that her sentence is unduly harsh and severe. As the People correctly concede, the waiver of the right to appeal is invalid because County Court "mischaracterized it as an 'absolute bar' to the taking of an appeal" (People v Dozier, 179 AD3d 1447, 1447 [4th Dept 2020], lv denied 35 NY3d 941 [2020], quoting People v Thomas, 34 NY3d 545, 565 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]). Nevertheless, we perceive no basis in the record to exercise our power to modify the sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]), especially in light of the fact that defendant has already completed the jail portion of her sentence and has been released to probation.

Entered: February 4, 2022

Ann Dillon Flynn

Clerk of the Court