Opinion
110307
03-17-2022
The People of the State of New York, Respondent, v. Keith Jackson, Appellant.
Keeley A. Maloney, Albany, for appellant. Meagan K. Galligan, District Attorney, Monticello (Meagan K. Galligan of counsel), for respondent.
Calendar Date: February 8, 2022
Keeley A. Maloney, Albany, for appellant.
Meagan K. Galligan, District Attorney, Monticello (Meagan K. Galligan of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Pritzker, Colangelo and Ceresia, JJ.
PRITZKER, J.
Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered February 23, 2018, convicting defendant upon his plea of guilty of the crime of robbery in the second degree.
Defendant pleaded guilty to robbery in the second degree in satisfaction of a three-count indictment, with the understanding that he would be sentenced to a prison term of no more than 10 years, and he purportedly waived the right to appeal. The charges stemmed from defendant punching and throwing to the ground the 75-year-old victim and then stealing his wallet. County Court thereafter sentenced defendant, as a second violent felony offender, to nine years in prison, to be followed by five years of postrelease supervision. Defendant appeals.
We affirm. Initially, the People concede, and we agree, that defendant did not knowingly, intelligently and voluntarily waive the right to appeal. The written waiver executed by defendant was overbroad, as it conveyed that there was an absolute bar to the pursuit of all potential remedies, including the right to seek postconviction relief in both federal and state courts (see People v Beach, 197 A.D.3d 1440, 1441 [2021]; People v Barrales, 179 A.D.3d 1313, 1314 [2020]). Further, County Court did not overcome the overbroad language in the written waiver by "ensuring that defendant understood the distinction that some appellate review survived the appeal waiver" (People v Beach, 197 A.D.3d at 1441 [internal quotation marks and citation omitted]; see People v Thomas, 34 N.Y.3d 545, 561 [2019]; People v Lafond, 189 A.D.3d 1824, 1825 [2020], lv denied 36 N.Y.3d 1121 [2021]). Accordingly, the appeal waiver was invalid (see People v Winters, 196 A.D.3d 847, 848-849 [2021], lvs denied 37 N.Y.3d 1025, 1030 [2021]; People v Mayo, 195 A.D.3d 1313, 1314 [2021]).
Defendant's challenge to the voluntariness of his plea is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion, despite having ample opportunity to do so prior to sentencing (see People v Almonte, 179 A.D.3d 1222, 1224 [2020], lv denied 35 N.Y.3d 940 [2020]; People v Morton, 173 A.D.3d 1464, 1465 [2019], lv denied 34 N.Y.3d 935 [2019]). Moreover, defendant did not make any statements during the plea colloquy that negated the elements of the crime so as to trigger the narrow exception to the preservation rule (see People v Grainger, 199 A.D.3d 1070, 1071-1072 [2021]; People v Boudier, 197 A.D.3d 1361, 1362-1363 [2021], lv denied 37 N.Y.3d 1159 [2022]). Defendant's claim of ineffective assistance of counsel is similarly unpreserved for lack of an appropriate postallocution motion (see People v Morehouse, 183 A.D.3d 1180, 1183 [2020], lv denied 35 N.Y.3d 1068 [2020]; People v Weidenheimer, 181 A.D.3d 1096, 1097 [2020]).
Finally, defendant's contention that his sentence is harsh and excessive is unpersuasive. The sentence was within the agreed-upon range and, given defendant's lengthy criminal history and the nature of the crime committed, we discern no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v Woods, 166 A.D.3d 1298, 1299-1300 [2018], lv denied 33 N.Y.3d 1036 [2019]; People v Hatch, 165 A.D.3d 1321, 1322 [2018], lv denied 32 N.Y.3d 1125 [2018]). Defendant's remaining claims have been considered and found to be without merit.
Garry, P.J., Egan Jr., Colangelo and Ceresia, JJ., concur.
ORDERED that the judgment is affirmed.