Opinion
111398
09-23-2021
The People of the State of New York, Respondent, v. Christopher Beach, Appellant.
John Ferrara, Monticello, for appellant. Meagan K. Galligan, District Attorney, Monticello (Kevin Mulryan of counsel), for respondent.
Calendar Date:September 3, 2021.
John Ferrara, Monticello, for appellant.
Meagan K. Galligan, District Attorney, Monticello (Kevin Mulryan of counsel), for respondent.
Before: Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.
Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered October 5, 2018, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
Defendant pleaded guilty to criminal possession of a controlled substance in the third degree and purportedly waived the right to appeal. County Court sentenced defendant, as a second felony offender, to nine years in prison, to be followed by three years of postrelease supervision. Defendant appeals.
The People concede, and we agree, that defendant did not validly waive the right to appeal. "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 Anderson, 184 A.D.3d 1020, 1020 [2020], lvs denied 35 N.Y.3d 1064, 1068 [2020], quoting People v Thomas, 34 N.Y.3d 545, 566 [2019]; see People v Barrales, 179 A.D.3d 1313, 1314-1315 [2020]). Defendant signed a written waiver purporting to effectuate a waiver of his right to seek postconviction relief at the state or federal level, including CPL article 440 motions and writs of habeas corpus and error coram nobis. Further, County Court did not overcome the overbroad written waiver by ensuring "that defendant understood the distinction that some appellate review survived the appeal waiver" (People v Lafond, 189 A.D.3d 1824, 1825 [2020] [internal quotation marks and citation omitted], lv denied 36 N.Y.3d 1121 [2021]). Accordingly, the appeal waiver is invalid (see People v Ghee, 195 A.D.3d 1244, 1244 [2021], lvs denied ___ N.Y.3d ___ [Aug. 4, 2021]; People v Barrales, 179 A.D.3d at 1314-1315). In light of the invalid appeal waiver, defendant's contention that the sentence is harsh and excessive is not precluded. That said, the sentence was in accordance with the terms of the plea agreement, and we discern no extraordinary circumstances or abuse of discretion warranting a modification of the sentence in the interest of justice (see People v Brito, 184 A.D.3d 900, 901 [2020]; People v Alolafi, 170 A.D.3d 1379, 1380 [2019]).
Defendant also argues that counsel's affirmative response to the People's question during the plea colloquy as to whether counsel was satisfied "that defendant's plea and waiver of appeal are entered into by him knowingly, intelligently and voluntarily" constituted ineffective assistance of counsel. We disagree. "A defendant's right to counsel is adversely affected when his or her attorney, either voluntarily or at the court's urging, becomes a witness against him or her or if counsel makes remarks that affirmatively undermine a defendant's arguments" (People v Curry, 123 A.D.3d 1381, 1382 [2014] [internal quotation marks, brackets and citations omitted], lv denied 25 N.Y.3d 950 [2015]). In our view, counsel's affirmation, made prior to the Court of Appeals 2019 decision in People v Thomas (supra), did not constitute him becoming a witness against or taking a position adverse to defendant (see People v Wise, 29 A.D.3d 1216, 1217 [2006], lv denied 7 N.Y.3d 852 [2006]; People v Price, 4 A.D.3d 254, 255 [2004], lv denied 2 N.Y.3d 804 [2004]). Moreover, County Court did not rely on counsel's affirmation, as the record reflects that County Court subsequently conducted a plea colloquy wherein defendant affirmed that he understood the ramifications of the plea and appeal waiver and that he was pleading guilty and waiving the right to appeal voluntarily (see People v Curry, 123 A.D.3d at 1382-1383; People v Rodriguez, 189 A.D.2d 684, 685 [1993], lvs denied 81 N.Y.2d 892 [1993]).
Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.