Opinion
112365, 112366
06-29-2023
The PEOPLE of the State of New York, Respondent, v. Jaredd M. ELSTON, Appellant.
Rural Law Center of New York, Inc., Plattsburgh (Keith F. Schockmel of counsel), for appellant. Karen A. Heggen, District Attorney, Ballston Spa (John B. Latella III of counsel), for respondent.
Rural Law Center of New York, Inc., Plattsburgh (Keith F. Schockmel of counsel), for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (John B. Latella III of counsel), for respondent.
Before: Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and McShan, JJ.
MEMORANDUM AND ORDER Appeals (1) from a judgment of the County Court of Saratoga County (James A. Murphy III, J.), rendered March 11, 2020, convicting defendant upon his plea of guilty of the crime of assault in the second degree, and (2) from a judgment of said court, rendered March 11, 2020, convicting defendant upon his plea of guilty of the crime of assault in the second degree.
Defendant waived indictment and agreed to be prosecuted by two superior court informations (hereinafter SCI) charging him with assault in the second degree. The charges stem from defendant's actions in November 2016 in repeatedly punching his girlfriend in the face, causing a fracture to her left eye orbital floor requiring multiple surgeries, and then stealing her car. Later the same day, defendant pointed a pistol at his brother and then struck him in the face and mouth with the pistol, threatening to shoot him, causing the loss of teeth and other injuries. The plea agreement, which satisfied all potential charges related to these incidents, contemplated that defendant would enter guilty pleas to both SCI charges and waive his right to appeal, in exchange for a prison term of five years on each count, to be served consecutively, to be followed by 1½ to 3 years of postrelease supervision (hereinafter PRS). Defendant pleaded guilty in conformity with the plea agreement and executed written waivers of appeal. County Court imposed the agreed-upon consecutive sentences, issued orders of protection and ordered restitution, and this appeal ensued.
A weapons charge originally included in the SCI related to defendant's brother was removed prior to the plea allocution.
Although, initially, the promised period of PRS was five years, County Court thereafter clarified that this was not permissible for these convictions and that the permitted period of PRS would be between 1½ and 3 years.
We affirm. Initially, as the People concede and our review of the record confirms, the written waivers of appeal were overly broad in that they purported to encompass all potential appellate issues, and County Court's brief colloquy was not sufficient to establish that defendant understood that some appellate issues survive (see People v. Francis, 213 A.D.3d 1031, 1032, 181 N.Y.S.3d 907 [3d Dept. 2023], lv denied 190 N.Y.S.3d 672, 211 N.E.3d 1125 [May 3, 2023] ; People v. Loya, 204 A.D.3d 1255, 1256, 166 N.Y.S.3d 752 [3d Dept. 2022], lv denied 38 N.Y.3d 1072, 171 N.Y.S.3d 444, 191 N.E.3d 396 [2022] ; People v. Mayeaux, 197 A.D.3d 1443, 1444, 153 N.Y.S.3d 692 [3d Dept. 2021], lv denied 37 N.Y.3d 1147, 159 N.Y.S.3d 339, 180 N.E.3d 503 [2021] ). Accordingly, as defendant did not validly waive his right to appeal, his challenge to the perceived severity of the aggregate sentence is not precluded (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Francis, 213 A.D.3d at 1032, 181 N.Y.S.3d 907 ).
However, we do not find that the agreed-upon aggregate sentence, which satisfied other serious charges and was less than the potential 14–year aggregate sentence had he been convicted of these violent felonies after trial (see Penal Law § 70.02[1][c] ; [2][b]; [3][c]), was unduly harsh or severe (see CPL 470.15[6][b] ). To that end, just months after being released from a prison in Florida, where he had a significant criminal history, defendant, a martial arts competitor, committed separate, violent assaults against two victims that seriously injured and traumatized them, supporting the imposition of consecutive sentences (see Penal Law § 70.25[1], [2] ). Under these circumstances, we decline defendant's request to reduce the sentence in the interest of justice (see CPL 470.15[3][c] ). Finally, as to the imposition of a lawful three-year period of PRS upon each conviction, although County Court attempted to impose them consecutively, they merge by operation of law and no corrective action is necessary (see Penal Law § 70.45[2][e] ; [5][c]; People v. Thorpe, 141 A.D.3d 927, 928 n 1, 35 N.Y.S.3d 769 [3d Dept. 2016], lv denied 28 N.Y.3d 1031, 45 N.Y.S.3d 383, 68 N.E.3d 112 [2016] ; People v. Passino, 104 A.D.3d 1060, 1061, 962 N.Y.S.2d 461 [3d Dept. 2013], lv denied 22 N.Y.3d 1157, 984 N.Y.S.2d 641, 7 N.E.3d 1129 [2014] ).
Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and McShan, JJ., concur.
ORDERED that the judgments are affirmed.