        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

820.2/11
KA 10-00823
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

AMBER MARACLE, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered September 25, 2009. The judgment
convicted defendant, upon her plea of guilty, of grand larceny in the
second degree and forgery in the second degree (four counts). The
judgment was dismissed in part and affirmed by order of this Court
entered June 10, 2011 in a memorandum decision (85 AD3d 1652), and
defendant on September 23, 2011 was granted leave to appeal to the
Court of Appeals from the order of this Court (17 NY3d 860), and the
Court of Appeals on June 27, 2012 reversed the order and remitted the
case to this Court for further proceedings consistent with the
memorandum (___ NY3d ___ [June 27, 2012]).

     Now, upon remittitur from the Court of Appeals,

     It is hereby ORDERED that, upon remittitur from the Court of
Appeals, the appeal from the judgment insofar as it imposed sentence
on the conviction of four counts of forgery in the second degree is
unanimously dismissed and the judgment is modified as a matter of
discretion in the interest of justice by reducing the sentence to an
indeterminate term of incarceration of 2a to 7 years and as modified
the judgment is affirmed.

     Memorandum: In People v Maracle (85 AD3d 1652, revd ___ NY3d ___
[June 27, 2012]), this Court previously dismissed defendant’s appeal
from the judgment in appeal No. 1 to the extent that it imposed
sentence on the conviction of four counts of forgery in the second
degree, and we otherwise affirmed the judgment convicting her upon her
plea of guilty of grand larceny in the second degree (Penal Law §
155.40 [1]) and four counts of forgery in the second degree (§ 170.10
[1]). With respect to defendant’s appeal from the resentence in
appeal No. 2, we affirmed the resentence on the forgery counts
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                                                         KA 10-00823

(Maracle, 85 AD3d at 1653). We concluded that defendant’s waiver of
the right to appeal encompassed her challenge to the severity of the
sentence. In reversing our orders, the Court of Appeals concluded
that the “plea colloquy fails to establish that defendant knowingly
and intelligently waived her right to appeal the severity of her
sentence” (id. at ___). The Court therefore remitted the matter to
this Court “so that it may, should it so choose, exercise its interest
of justice jurisdiction” (id. at ___).

     Upon remittal, we agree with defendant with respect to the
judgment in appeal No. 1 that the sentence imposed for grand larceny
in the second degree is unduly harsh and severe. Thus, as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [b]), we
modify the judgment by reducing the sentence to an indeterminate term
of incarceration of 2a to 7 years. With respect to the resentence in
appeal No. 2, we conclude that the sentence is not unduly harsh or
severe.




Entered:   July 6, 2012                         Frances E. Cafarell
                                                Clerk of the Court
