Opinion
109945
06-25-2020
The PEOPLE of the State of New York, Respondent, v. Malik ANDERSON, Also Known as M, Appellant.
Timothy S. Brennan, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Timothy S. Brennan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark, Devine and Reynolds Fitzgerald, JJ.
MEMORANDUM AND ORDER
Clark, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered October 30, 2017, convicting defendant upon his plea of guilty of the crime of attempted murder in the second degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to attempted murder in the second degree and purportedly waived the right to appeal. The plea agreement provided that, subject to certain conditions, defendant would be sentenced to a determinate prison term within the range of 10 to 12 years. County Court thereafter sentenced defendant to 10 years in prison, to be followed by five years of postrelease supervision. Defendant appeals.
Defendant contends that his waiver of the right to appeal was not knowing, intelligent and voluntary, and we agree. An appeal waiver is not "knowingly or voluntarily made in the face of erroneous advisements warning of absolute bars to the pursuit of all potential remedies, including those affording collateral relief on certain nonwaivable issues in both state and federal courts" ( People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ). During the plea colloquy, County Court informed defendant that the appellate rights that he was waiving were listed on a written appeal waiver. The written waiver, which was signed by defendant, stated that defendant was waiving his "right to appeal from any other matters for which [he] may have an appeal as of right or otherwise in any [s]tate or [f]ederal court, or that I may collaterally attack pursuant to [CPL articles 330 or 440], or through [w]rits of [c]orum [n]obis or [h]abeas [c]orpus, or any other manner, in any [s]tate or [f]ederal court." In light of this overbroad language, and the lack of any indication that defendant, a first time felony offender, understood that he retained the right to some appellate review, we find that defendant did not knowingly, intelligently and voluntarily waive the right to appeal (see id. at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Barrales, 179 A.D.3d 1313, 1314–1315, 118 N.Y.S.3d 263 [2020] ; compare People v. Martin, 179 A.D.3d 1385, 1386, 114 N.Y.S.3d 889 [2020] ).
To the extent that defendant argues that his plea was not voluntarily entered, he failed to preserve this claim by an appropriate postallocution motion, and the narrow exception to the preservation rule was not triggered here (see People v. Almonte, 179 A.D.3d 1222, 1224, 116 N.Y.S.3d 782 [2020], lv denied 35 N.Y.3d 940, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2020] ; People v. Lobao, 178 A.D.3d 1238, 1238–1239, 112 N.Y.S.3d 604 [2019], lv denied ––– N.Y.3d ––––, 125 N.Y.S.3d 4, 148 N.E.3d 468, 2020 WL 3067770 [Apr. 30, 2020] ). Were this issue properly before us, we would find that the record establishes that defendant entered a knowing, intelligent and voluntary plea (see e.g. People v. Haenelt, 161 A.D.3d 1489, 1490, 77 N.Y.S.3d 770 [2018], lv denied 31 N.Y.3d 1148, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018] ). Finally, contrary to defendant's contention, we do not find the sentence to be harsh or excessive. Although the plea agreement contemplated that defendant could be sentenced to a prison term of up to 12 years, County Court sentenced defendant to 10 years in prison. We find no abuse of discretion in this sentencing determination or extraordinary circumstances warranting a reduction of the sentence (see People v. White, 163 A.D.3d 1358, 1358–1359, 78 N.Y.S.3d 527 [2018], lvs denied 32 N.Y.3d 1002, 1009, 86 N.Y.S.3d 760, 111 N.E.3d 1116 [2018] ; People v. Wolcott, 154 A.D.3d 1001, 1002, 60 N.Y.S.3d 852 [2017], lv denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [2018] ).
Garry, P.J., Lynch, Devine and Reynolds Fitzgerald, JJ., concur.
ORDERED that the judgment is affirmed.