Opinion
110867
01-06-2022
The PEOPLE of the State of New York, Respondent, v. Marc HARRIS, Also Known as Merc and Smoke, Appellant.
Adam G. Parisi, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Adam G. Parisi, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Pritzker and Colangelo, JJ.
MEMORANDUM AND ORDER
Pritzker, J. Appeal from a judgment of the Supreme Court (Hogan, J.), rendered October 1, 2018 in Schenectady County, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.
In satisfaction of a five-count indictment, defendant pleaded guilty to criminal possession of a weapon in the second degree and purportedly waived his right to appeal. Supreme Court sentenced defendant, a second felony offender, to a prison term of seven years followed by five years of postrelease supervision. Defendant appeals.
We agree with defendant's contention that his waiver of the right to appeal was invalid. The written appeal waiver executed by defendant was overbroad, as it indicated that the waiver was a complete bar to a direct appeal as well as to collateral relief on certain nonwaivable issues in both state and federal courts (see People v. Bisono, 36 N.Y.3d 1013, 1017, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ; People v. Mayo, 195 A.D.3d 1313, 1314, 149 N.Y.S.3d 379 [2021] ; People v. Ghee, 195 A.D.3d 1244, 1244, 145 N.Y.S.3d 872 [2021], lvs denied 37 N.Y.3d 992, 152 N.Y.S.3d 410, 411, 174 N.E.3d 350, 351 [2021]). Furthermore, the oral colloquy was insufficient to cure the multiple mischaracterizations in the written waiver or to demonstrate that defendant understood the nature and consequences of the waiver of appellate rights (see People v. Bisono, 36 N.Y.3d at 1017, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Ghee, 195 A.D.3d at 1244, 145 N.Y.S.3d 872 ). Notwithstanding the invalid appeal waiver, defendant's challenge to the voluntariness of the plea is nevertheless unpreserved as the record does not reflect that he made an appropriate postallocution motion, and the plea colloquy reflects no statements by defendant that would trigger the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Haynes, 194 A.D.3d 1310, 1310, 144 N.Y.S.3d 648 [2021] ). In the absence of a postallocution motion, defendant's contention that he received ineffective assistance of counsel affecting the voluntariness of the plea is also unpreserved (see People v. Brewster, 194 A.D.3d 1266, 1267, 144 N.Y.S.3d 402 [2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 690, 172 N.E.3d 802 [2021] ; People v. Miller, 190 A.D.3d 1029, 1030, 138 N.Y.S.3d 715 [2021] ). As for defendant's challenge to the agreed-upon sentence as harsh and excessive, we find no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v. Wilder, 196 A.D.3d 861, 863, 148 N.Y.S.3d 544 [2021] ; People v. Goldwire, 168 A.D.3d 1286, 1286, 90 N.Y.S.3d 569 [2019], lv denied 33 N.Y.3d 976, 101 N.Y.S.3d 270, 124 N.E.3d 759 [2019] ).
Garry, P.J., Egan Jr., Lynch and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.