People v. Boyzuck

Appeal from a judgment of the Yates County Court (W. Patrick Falvey, J.), rendered February 3, 2009. The judgment convicted defendant, upon her plea of guilty, of grand larceny in the second degree and criminal possession of a forged instrument in the second degree (six counts). It is hereby ordered that the judgment so appealed from is modified as a matter of discretion in the interest of justice by directing that the sentences imposed for criminal possession of a forged instrument in the second degree under counts 12, 14, 18, 19, 21 and 41 of the indictment shall run concurrently with respect to each other and as modified the judgment is affirmed. Memorandum: Defendant appeals from a judgment convicting her, upon her plea of guilty, of one count of grand larceny in the second degree (Penal Law § 155.40 [1]) and six counts of criminal possession of a forged instrument in the second degree (§ 170.25). We reject defendant’s contention that the imposition of consecutive sentences for the counts of criminal possession of a forged instrument was illegal. Defendant committed six distinct acts that formed the basis for those counts, and thus County Court was authorized to impose consecutive sentences (see People v Day, 73 NY2d 208, 211-212 [1989]). Nevertheless, we agree with defendant that the imposition of consecutive sentences for the counts of criminal possession of a forged instrument renders the sentence unduly harsh and severe. Here, the valid waiver by defendant of the right to appeal does not preclude her from challenging the severity of the sentence inasmuch as the court’s statements concerning the maximum sentence that could be imposed were inconsistent, confusing and misleading (see generally People v McNulty, 70 AD3d 1127, 1128 [2010]; People v Gordon, 53 AD3d 793 [2008]). During the plea proceeding, the court advised defendant that she would be sentenced to a term of incarceration of 6 to 18 years. The court, however, also told defendant three times during the plea proceeding that she could receive “up to 15 years in prison” for the crimes .to which she was pleading guilty. Indeed, [1531] the court advised her that, if she did not cooperate with the Probation Department, the sentence promise would be withdrawn and she could “be sentenced to as much as a maximum permitted by law: that is, 15 years in prison.” That statement not only reinforced the misstatement concerning the possible maximum term of incarceration, but it also suggested that an enhanced term of 15 years would be imposed as a sanction for defendant’s failure to cooperate with the Probation Department. We therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentences imposed for criminal possession of a forged instrument in the second degree under counts 12, 14, 18, 19, 21 and 41 of the indictment shall run concurrently with respect to each other (see CPL 470.15 [6] [b]). Although the further contention of defendant that she was denied effective assistance of counsel survives her guilty plea and valid waiver of the right to appeal to the extent that she contends that the plea was infected by the alleged ineffective assistance (see People v Kapp, 59 AD3d 974 [2009], lv denied 12 NY3d 818 [2009]), we nevertheless conclude that her contention lacks merit (see generally People v Ford, 86 NY2d 397, 404 [1995]). Finally, the court properly directed defendant to pay a 10% surcharge on the restitution ordered based upon the affidavit of a Probation Department official indicating that “the actual cost of the collection and administration of restitution . . . exceeds [the initial 5% surcharge]” (Penal Law § 60.27 [8]; see People v Bennett, 52 AD3d 1236, 1236-1237 [2008], lv denied 11 NY3d 785 [2008]). All concur except Fahey and Pine, JJ., who dissent in part and vote to affirm in the following memorandum.