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

580
KA 12-00897
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHADAJE MOBLEY, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered October 26, 2011. The judgment convicted
defendant, upon her plea of guilty, of burglary in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting her
upon her plea of guilty of burglary in the second degree (Penal Law §
140.25 [2]). We agree with defendant that her waiver of the right to
appeal is invalid because “the minimal inquiry made by County Court
was insufficient to establish that the court engage[d] the defendant
in an adequate colloquy to ensure that the waiver of the right to
appeal was a knowing and voluntary choice” (People v Box, 96 AD3d
1570, 1571, lv denied 19 NY3d 1024 [internal quotation marks omitted];
see People v Hamilton, 49 AD3d 1163, 1164). Indeed, on this record
there is no basis upon which to conclude that the court ensured “that
the defendant understood that the right to appeal is separate and
distinct from those rights automatically forfeited upon a plea of
guilty” (People v Lopez, 6 NY3d 248, 256).

     Defendant did not move to withdraw the plea or vacate the
judgment of conviction, and therefore failed to preserve for our
review her contention that the plea was not knowingly, voluntarily,
and intelligently entered (see People v Robinson, 112 AD3d 1349,
1349). Contrary to her contention, “this case does not fall within
the rare exception to the preservation requirement because nothing in
the plea allocution calls into question the voluntariness of the plea
or casts ‘significant doubt’ upon [her] guilt” (id., quoting People v
Lopez, 71 NY2d 662, 666).

     Finally, defendant contends that the court abused its discretion
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                                                          KA 12-00897

in denying her request for youthful offender status and that the
sentence, a determinate term of imprisonment of seven years plus five
years of postrelease supervision, is unduly harsh and severe. We
reject those contentions.

     In her initial statement to the police, defendant stated that
she, her fiancé and her fiancé’s brother burglarized a home. She
entered the home through a window late at night, and proceeded to open
the door for the codefendants. Defendant acted as a lookout while the
codefendants took numerous items of property, including a credit card
with a woman’s name on it. The next day defendant used that credit
card multiple times, amassing over $6,000 in charges. Defendant
agreed to plead guilty to the burglary charge, promising that she
would cooperate in the prosecution of the codefendants. In exchange
for her truthful testimony, she would receive a youthful offender
adjudication and a sentence of probation. Defendant was granted
pretrial release. Due to problems the prosecutor was encountering,
defendant was returned to court for an amplified allocution, during
which defendant was sworn. At that time defendant again implicated
the codefendants, while specifically denying that her brother was
involved. The week before the codefendants’ trial, defendant was
returned to court, whereupon she was again informed that her plea
agreement was conditioned on her truthful testimony at the
codefendants’ trial.

     Nevertheless, at the codefendants’ trial, defendant testified
that she was unable to recall any of the details of the burglary or
even her own involvement in that burglary. Specifically, she did not
remember ever committing a burglary with the codefendants. With
respect to her use of the credit card, defendant testified that her
brother gave her the card and that the codefendants had nothing to do
with it. Defendant explained that her statement to the police was her
attempt to cover for her brother.

     Based on “ ‘the gravity of the crime[,] . . . [the] manner in
which it was committed . . . , defendant’s attitude toward society and
[her lack of] respect for the law’ ” (People v Amir W., 107 AD3d 1639,
1640), we conclude that the court did not abuse its discretion in
denying defendant’s request for youthful offender status (see People v
Lowe, 113 AD3d 1133, 1134; People v Jones, 107 AD3d 1611, 1611, lv
denied 21 NY3d 1043, reconsideration denied 22 NY3d 956). We further
conclude that the sentence is not unduly harsh or severe. Defendant
perjured herself, made a mockery of the criminal justice system and
chose to violate her extremely advantageous plea agreement in an
attempt to protect her fiancé and his brother. While we recognize
that defendant was only 18 years old at the time of the offense and
had no prior convictions, she was an intelligent young woman who made
a deliberate choice, yet again, to violate the law for her own
personal interests.

     All concur except CENTRA and LINDLEY, JJ., who dissent and vote to
modify in the following Memorandum: We respectfully dissent in part
because we believe that the sentence is unduly harsh and severe, and
we therefore would modify the judgment by reducing the sentence of
                                 -3-                          580
                                                        KA 12-00897

imprisonment as a matter of discretion in the interest of justice.
Defendant gave a statement to the police admitting her involvement in
the burglary and implicated the two codefendants. Defendant was
promised a sentence of youthful offender treatment and probation as
part of the plea bargain, which required her to cooperate in the
prosecution of the case against the codefendants. At the
codefendants’ trial, however, defendant testified that she did not
remember committing a burglary with the codefendants. We agree with
County Court that defendant violated the plea agreement and further
conclude that the court did not abuse its discretion in denying
defendant’s request for youthful offender status (see People v Lowe,
113 AD3d 1133, 1134). Nevertheless, in our view the sentence, a
determinate term of imprisonment of seven years plus five years of
postrelease supervision, is unduly harsh and severe. Defendant was 18
years old at the time of the offense and had no prior convictions.
Defendant reported to the probation officer that she graduated as
valedictorian of a prepatory high school and attended college for two
semesters. The codefendants were brothers, and one of them was the
father of one of defendant’s two young children. Defendant was
granted pretrial release after pleading guilty, and she notes on
appeal that she was under tremendous pressure at the codefendants’
trial. Under the circumstances, we would reduce the sentence of
imprisonment imposed to a determinate term of four years (see
generally CPL 470.15 [6] [b]).




Entered:   June 13, 2014                       Frances E. Cafarell
                                               Clerk of the Court
