Opinion
1058 KA 18-00407
12-23-2021
The PEOPLE of the State of New York, Respondent, v. Hector I. PAGAN, Defendant-Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of three counts of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39 [1] ), defendant contends that his waiver of the right to appeal is unenforceable. We agree. The waiver of the right to appeal is invalid because, among other reasons, County Court's oral waiver colloquy and the written waiver together mischaracterized the waiver "as an ‘absolute bar’ to the taking of an appeal" ( People v. Dozier , 179 A.D.3d 1447, 1447, 119 N.Y.S.3d 318 [4th Dept. 2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020], quoting People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2019] ), "as well as a bar to all postconviction relief" ( People v. Johnson , 192 A.D.3d 1494, 1495, 140 N.Y.S.3d 833 [4th Dept. 2021], lv denied 37 N.Y.3d 965, 148 N.Y.S.3d 770, 171 N.E.3d 246 [2021] ).
Nevertheless, defendant failed to preserve for our review his contention that his plea was "improperly" entered because he provided only "yes" and "no" responses to questions asked of him during the plea colloquy (see People v. Turner , 175 A.D.3d 1783, 1784, 109 N.Y.S.3d 528 [4th Dept. 2019], lv denied 34 N.Y.3d 1082, 116 N.Y.S.3d 177, 139 N.E.3d 835 [2019] ). In any event, defendant's contention lacks merit (see People v. Bennett , 165 A.D.3d 1624, 1625, 85 N.Y.S.3d 662 [4th Dept. 2018] ).
Finally, we perceive no basis in the record for us to exercise our power to modify the negotiated sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b] ).